If the administration of chambers is in order, then everyone in chambers is better placed at providing legal services. When I spoke to him – together with Oliver Hanmer, BSB Head of Quality – in December, they talked about making the Bar fit for purpose. As a member of the main board of the BSB, Sam supports the changes in practice rules but he equally supports the barrister’s right to decide whether or not to take advantage of them.
Thanks to those changes he recognises that the Bar, or at least part of it, is moving away from the system of individuals practising in a simple referral profession and towards “a more corporate structure”. Sam aims to “allow those who want to contract with the Bar to feel safe in ensuring that the system is there in place, working and making the Bar a contractable entity”. “The future appears to be to ensure that the Bar has every opportunity across the board to remain as it is, working in the way it can, a simple referral profession, and many parts of the Bar will continue to do that successfully in the future”, while others will prefer some kind of ProcureCo. All, however, will need to be backed up by a “solid structure of improvement and compliance with the code”. In short, monitoring makes the Bar “a more attractive proposition” to corporate entities and to Government but it does not stop the Bar operating as it always has.
The first step: the online questionnaire
The chambers’ monitoring system which began in October 2010, following on from an earlier pilot among 35 chambers, has begun with sending out questionnaires to deal with pupillage, equality and diversity, money laundering compliance (which is required by the Money Laundering Regulations), and chambers’ complaints handling. The plan was to start at a fairly low level, without committing too many resources and not requiring too much from chambers. The questionnaire is targeted at those areas which are essential for a regulator.
I asked Oliver Hanmer if any concerns had emerged so far. One relates to logistics in complaints handling. Since 6 October, all complaints by lay clients must begin in chambers which means that there is an obligation to inform clients of the right to complain. This can be difficult if there are no client contact details or the brief arrives very late in the day. The BSB is talking to the Legal Services Board (“LSB”) about finding the most practical way to make this work. It is certainly “not about coming in with a big disciplinary stick”; the BSB’s powers in disciplinary matters are there but only as a last resort. The focus of the monitoring programme is to assist chambers to comply with their regulatory requirements. He also had the question of equality and diversity in mind. According to the Proposed New Equality and Diversity Conduct and Practising Rules Consultation Paper issued in November, the monitoring pilot study revealed “significant areas of non-compliance with the current provisions of the Code of Conduct”. Because of the evidence gathered, and of continuing concerns about under-representation of ethnic minorities and women in some areas, the BSB has proposed that the Code of Conduct should include additional mandatory equality provisions covering such areas as parental leave, recruitment and monitoring.
This leads on to the matter of pupillage. Sam is also Chairman of the pupillage sub-committee of the BSB’s Education and Training Committee, and so is directly involved with the monitoring of pupillage which in turn is another quality assurance issue. He realises that some thought needs to be given as to the best way of organising this – should, say, all pupillage matters be brought under a single umbrella? More immediately there are the recommendations of the Wood Review fully to implement [implement in full?]. I asked about the requirement that chambers pay pupils a minimum stipend, which has been fixed at £10,000. This has caused considerable debate, and some calls for its abolition, as many have blamed it for the fall in numbers of pupillages by chambers who are content simply to recruit from those who do not get a tenancy elsewhere. However the Bar’s responsibility to pupils – and the vital need that the next generation is ready for the profession – has been accepted as paramount. The stipend will be retained and indeed increased to £12,000.
For a time Sam’s sub-committee engaged in general monitoring of pupillage, dealing with queries and problems as they arose, but they have recently done a pilot of looking at chambers on a random basis. Four “sets” were involved, made up of three chambers and an accredited training organisation – both solicitors and the Government Legal Service can, if they fulfil the requirements, take pupils and therefore qualify as an Approved Training Organisations (“ATO”). The aim was to make sure that the BSB had a “baseline of operations” and to ensure that the Bar understood that the BSB has an interest in the monitoring of pupils. The four sets were visited, and there were discussions about how they recruited. The results of the pilot will be reported back now for consideration as to whether to extend this closer monitoring further. The Bar is changing, he said, from a profession with little by way of regulation to a profession with “little regulation” which he hopes is sufficient for a modern footing. It is recognised that chambers will always have a discretion while working within standard procedures.
The Quality Assurance for Advocates Project
Sam and Oliver have been part of the Quality Assurance (“QA”) for Advocates Project and are members of the Joint Advocacy Group which, when we met, was still sifting through the responses to August’s consultation paper. Although it was too early to comment on them, they said that in speaking to people generally, there has been “a very warm reception to the idea of QA” across the board. Sam concedes though that it will come as a shock to some who may find it “intrusive” as they realise for the first time the quality of a barrister’s performance in court will be a matter of general concern. He is confident though that the quality of advocacy training which barristers undergo will see people through: “if you can train people in advocacy you can QA them in advocacy”. His concern is more for those who studied for the Bar when there was no advocacy training and who have been practising based on what they learned as they went along. I pointed out that only a handful has ever taken advantage of the few opportunities there are to undergo advocacy training beyond the NPP course. Much work remains to be done before the QA system is up and running, including more detailed guidelines for what the judicial evaluers should be looking for. As Oliver put it, a level one barristers will look very different from a level four advocate. Oliver reminded me that the LSB has laid down a deadline to commence the scheme by July 2011. One imagines that should concentrate people’s minds.
A strong Bar
Sam’s confidence in the Bar’s training stems in part from his own experience as an advocacy trainer for his Inn. He has also in his practice encountered some interesting challenges. He was counsel in Hibberd in R v Peter Blake, John Twomey, Glenn Cameron and Barry Hibberd – the Heathrow armed robbery case which was the first non-jury Crown Court trial. The appeal is pending but I asked him what it felt like to have a judge as his audience rather than a jury. The major difference was clearly the involvement of the judge, Mr Justice Treacy, who unlike a jury could make it clear what would help him. As a result cross-examination was structured to take into account the judge’s ability to take on points which were “so much quicker and speedier” than a jury. In addition, speeches were kept to a minimum. Would the Bar therefore do well in the new world of timetabling for criminal trials? Again Sam placed his confidence on the basis that advocates had been well equipped from advocacy training in how succinctly to structure their cross-examination.
Sam applied to join the BSB at its inception, attracted by the opportunity to get in on the ground level and by the tremendous impact it would have on the profession. That impact has steadily grown and together with the BSB’s secretariat, he intends to make sure that the Bar is stronger as a result.
David Wurtzel is Counsel’s Consultant Editor.