Farewell thoughts

As 2015 draws to a close, reflections on the past year as Chairman of the Bar

This is my last Chairman’s column for Counsel and I thought that I would set out a few thoughts and reflections which have occurred to me over the course of the past year.

In the beginning, so to speak, were the preparations for the Global Law Summit (GLS). Although our participation was controversial, I am sure we made the right decision to take part. In hard-hitting presentations on an international stage, David Pannick and Tony Cross, among others, excoriated the Government for its dismantling of access to justice. Furthermore, the event at the Rolls Building containing impressive demonstrations of how legal work is performed in England and Wales, from COMBAR, TECBAR and the Chancery Bar Association, was said by many delegates to be a highlight.

In its daily activities, the Bar demonstrates huge intellectual flexibility, resource and ingenuity. When it comes to public affairs, however, we sometimes appear to leave these qualities on the hat stand outside the room. The Bar showed its disapproval of the apparent hypocrisy of the Coalition Government in its linking of the GLS to Magna Carta by having a number of demonstrations outside the building. There is nothing wrong with that, and much to commend such demonstrations. But there is room for a nuanced approach. The demonstrations outside were re-enforced by presentations inside the GLS to which I have made reference. Wouldn’t it have been folly not to have taken advantage of that opportunity? By grasping it, we were able to express our trenchant views twice, rather than just once.

As this is a personal reminiscence, I have to say that the opportunity to see the four extant Magna Carta documents, brought together for the first time since they were sealed, was an astonishingly moving event. The Salisbury one, in particular, looks as though it was written yesterday. To see such pieces of vellum, 800 years old and no bigger than a large tea towel, which have had such a huge influence on the development of legal principle all round the world, was an unforgettable experience.

Access to justice

That leads me to travel. The one thing that is utterly striking, from Brazil to China to Kazakhstan, is the degree of respect in which the Bar of England and Wales, and our system of justice, are held. We are seen as a model of incorruptibility, fairness and equitable access to justice. I am not an apologist for the disastrous changes wrought by LASPO, the institution or increase in court and tribunal fees and the introduction of criminal court charges. Wherever I go, I tell the truth about how these changes have devastated access to justice. The reaction of those who hear about these changes is one of amazement. There is no hypocrisy in this. Even those who live in a jurisdiction in which there is no effective legal aid express huge disappointment about what is happening in England and Wales. That is because our retreat from a world-beating system deeply harms their aspirational efforts to campaign for a system, such as ours used to be, in their own countries.

In addition, I have repeatedly warned the Government that diminishing access to justice for all but a small sector of the wealthiest in society harms our global standing and puts at risk the primacy of our jurisdiction as the international resolution capital of the world. Other countries are deeply jealous of our leading position and will use every means at their disposal to supplant us. In dismantling, for peanuts in the overall scheme of things, our superb justice system, Governments show a breathtaking ignorance of the consequential effects of their ‘reforms’. And that is not just my view. The National Audit Office and the House of Commons Public Accounts Committee said exactly that in their careful and succinct reports on the effects of LASPO.

That leads me to some final ruminations. There remain some aspects of the Bar that I simply do not understand. One of them is the continued ignorance, in the face of explanation after explanation, about what the Bar Representation Fee (BRF) pays for. It is an optional payment of £100 a year. It is less than you would pay for an indifferent coffee in a plastic cup once a week. Or, for those lotus eaters among us, less than a pint of bitter a week or a glass of supermarket plonk. But the BRF is our life blood. It goes entirely, in contradistinction to the Practising Certificate Fee (PCF), to fund our representational activities. It underpins the work, which resulted in the shelving of threatened cuts to advocacy fees in crime. It goes to support the production of a new Advocates’ Graduated Fee Scheme (AGFS) and, without it, we would not have been able to make our representations on the introduction of a panel scheme to reward excellence in Crown Court advocacy. It goes to pay for our continual warnings about the effects of LASPO to ministers and parliamentarians alike. It funds our work to protect the quality of advocacy in family work and our efforts to sell the Bar internationally in areas such as Bribery Act advice, international arbitration and extradition. I know that many barristers are hard pressed but surely £100 a year is not too much to pay for all these benefits, and there are many more I simply have not got the space to list.

What I do understand is the centrality of our profession to the maintenance and development of a fair society. There are still those who, in spinal reflex fashion, trot out the ‘barrister fat cat’ epithet whenever we put our case about the diminution of access to justice, for example. But I think we are well on the way to winning that argument. Increasingly, the public and ministers recognise that, when we make our representations, we are doing so not because we are promoting a narrow sectional interest, but because we all feel that a vibrant, self-employed Bar is in the interests of society as a whole. Let me take criminal and family fees as an example. Of course we need to put food on our tables and supply a roof over our heads for ourselves and our families. But, if rates of remuneration are too low and the effort involved in obtaining that remuneration too great, in ten years’ time the pool of those capable of representing those charged with rape and murder, or with the skills to prosecute them, will have so diminished that our system of adversarial justice will no longer be tenable. And that does not even address the question of where the judges will come from with the expertise and experience to try the most serious criminal and family cases.

Having said all this, my final and overwhelming reflection is of the dedication and sheer effort put in by the Bar of England and Wales to provide advocacy and advisory services of the highest possible standards to the public and to business here and round the world. To those who are in commercial, construction, chancery, tax or IP, to name but some areas of practice, who are thriving and enjoying the benefits of their success, I offer my most heartfelt congratulations. The only reason you are earning well is because you are able do something no one else can. You have expertise and skill unmatched elsewhere. No company wants to give its money away. They pay excellent fees because they get excellent service for those fees and you represent value for money. Long may your success continue.

To those in the fields of publicly funded law, despite the reductions in fees over the years, you continue to dedicate long hours to the provision of services which, if the full market rate were applied, would bring you great comfort. I know, from personal experience, the toll that takes on family life, leisure time and your ability to lead a balanced and enjoyable life. You are not forgotten. Those who represent the Bar are working non-stop to make your lives better and to reduce the burdens on you in your professional lives.

The mark of a great profession and a testament to its dedication to the public it serves is the enormous contribution it makes to the provision of pro bono services. Of course, unpaid work cannot make up for the lack of a properly funded system of legal aid; and there is a grotesque irony in Government suggestions that the profession should do more pro bono when it has increased the need by the withdrawal of legal aid in so many areas, principally affecting the most vulnerable members of society.

But we have risen above all this. Last year, just under half of the Bar made a voluntary payment of £30 to assist the Bar Pro Bono Unit. I know that they are deeply grateful for the increase in their work this money has allowed. It is important to recognise that these contributions are additional to the many hours that many barristers dedicate to pro bono activities, almost exclusively unsung and out of the public eye. I should like to think that we could achieve the position in the next year or two when all barristers pay this contribution.

It has been a massive privilege to serve as Chairman of the Bar in 2015. Without the dedication, expertise, friendship and support of the Bar as a whole and of those who give up so much of their spare time to chair and sit on committees of the Bar Council, nothing would have been achieved. The other group, to whom I wish to pay tribute, are the dedicated staff of the Bar Council, who do so much to ensure that we, as a profession, get our voice heard in the corridors of power.

Category: 
Author details: 
Alistair MacDonald QC

Alistair is Chairman of the Bar Council of England and Wales for 2015. Alistair was called to the Bar in 1983 and took Silk in 2000. Practising from Leeds, he is co-Head of Chambers at New Park Chambers.