Facing up to Change

Nick Green QC reflects on the issues that surround the implementation of the Legal Services Act 2007

The main issues on the Bar Council agenda include several matters of enduring concern: legal aid fees (and the judicial review proceedings brought against the MoJ and LSC), the government’s decision to abolish the LSC and bring it into the MoJ as an executive agency, the implications of the Jackson Review of Costs, referral fees generally, and new business structures. I have continued to travel the country to speak at length to the Bar. So far I have visited about 50 chambers and given speeches to nearly 2,000 people. A very great deal of what I find myself doing is affected by the work being undertaken to implement the Legal Services Act 2007 (“the 2007 Act”). So, a few ongoing reflections.


Diplodocus QC

A most heartening aspect of the discussions I have been having with the Bar, in London and outside, has been the attitude of the senior members. At the outset of my visits to chambers and to the Circuits I wondered what response I would get from heads of chambers and senior Silks. I anticipated a chorus of opposition to the prospect of change. Far from it. Diplodocus QC does exist but (in the main) he recognises (and it is almost invariably a he) that he has had 25 or more very good years at the Bar and that whatever he actually feels about the changes swirling around him, the real task at hand is to protect both the junior Bar and the Bar to come.

 

Athenian democracy

If difficult decisions have to be made, how should they be made? It really all depends upon perspective. Clerks and practice managers make the perfectly valid point that the sets that will survive the present very challenging climate are those with short decision-making structures and therefore have the fleetest of feet. They explain that the notion that chambers operate as an Athenian democracy is fine in theory but outdated in practice as chambers grow in numbers and as decisions become more complex. They say that long decision-making structures are (potentially) a disaster in practice. It means that the less enlightened (but still influential) Diplodocus QC will rumble out of his room and complain that all of the changes afoot are profoundly damaging to the Bar and should be opposed. Junior members of the Bar, however, express the equally valid view that if decisions are taken by committees and (so-called enlightened) members of chambers, their interests as juniors might not be fully represented. They are also concerned that there is a real danger of abuse in these new structures. The best solution to this conundrum that has been put to me was in fact from a non-London Silk who said (not quite verbatim but not far from it): “I hate these changes and I hate the new Act and all it stands for. But I am very concerned indeed to secure a future for the juniors. So I have set up a committee in chambers which comprises a mixture of the brightest and most forward-thinking juniors, together with my best young Silk, and the senior clerk and practice manager. I have asked them to produce a blueprint for the future of chambers and then I shall simply close my eyes and say ‘yes’”.

 

We are not alone?

For those of you who think that the legal profession in England and Wales has been unfairly singled out for radical surgery by virtue of the 2007 Act, you should be aware that the rest of the world is watching with enormous interest as to how events unfold here. Governments around the globe are looking at the 2007 Act and contemplating its importation into their own legal professions. Indeed, one of my most arduous tasks is to defend the profession from those across the world who accuse us of having “sold out to government”. In the line of duty I am therefore attending the World Referral Bar Conference in Sydney where (I am informed by the organisers) I shall be required to explain what the Bar is up to here. It is sorely tempting to blame it all on the BSB but, in truth, I shall be explaining that whilst at the outset the Bar viewed the 2007 Act with considerable suspicion and some hostility, now more and more they are viewing it as a means of taking the necessary responsive steps to modernise and adapt in these testing times.

 

The virtues of regulation

And, on the subject of the BSB, I commend to you the text of the lecture given by the Master of the Rolls, Lord Neuberger on 22 February 2010 at the Inner Temple, entitled “The Ethics of Professionalism in the 21st Century”. It is a pellucid exposition of the virtues of ethics which mixes Jeremy Bentham with Ally McBeal. It highlights a truth: that specialist, high quality, rigorous regulation should be seen as a major selling point of the Bar. In a world in which we are increasingly forced into ever more commercial byways, exacting regulation is a benchmark of integrity and a badge of quality to which we can hold fast. This is another reason why I shall not be blaming the BSB when I am standing in the dock down under.

Nick Green QC is Bar Chairman

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