Hard Times

Desmond Browne QC reviews the state of the profession in 2009


Tim Dutton QC ended his last column by noting the abiding memory of his year in office as the many who gave up time for the profession for the simple reason that they want it to thrive. Of no one was that more true than Tim, who worked day and—literally—night for the profession, first as leader of the South Eastern Circuit and then as Chairman. Tim also mentioned the many assiduous Bar Council chairs and committee members. Let me be invidious and pick out one, since he is standing down. For many years, David Etherington has been the stalwart Chair of the Professional Practice Committee. He was Tim’s best man, and he has been the Bar’s best man, too.

Access to justice

Tim is a hard act to follow (even with Nick Green QC as Vice-Chairman); and 2009 will be a hard year. It is ironic that as we learn to live with what once seemed the self-contradiction of 0% interest rates, we should also be “celebrating” the 60th anniversary of the Legal Aid Act 1949. How cheering it would be, if we really could celebrate a pillar of the welfare state as integral to our society as the NHS. The straitened finances of government and individuals will inevitably aggravate the social pressures which put livelihoods, homes and family lives on the line, and those facing such threats must be able to feel that the Bar is their first line of defence. Talk of access to justice is mere posturing, unless it is effective access to justice.


Family legal aid

At the very time the senior judiciary of the Family Division are warning that family life is in “melt-down”, the Legal Services Commission (LSC) is consulting on a proposal to cut £13m from advocates’ fees—which would wipe out the 8% put back into the scheme in 2005. As I write, we are awaiting the final stages of the consultation in the New Year, as well as the analysis of the results of the Family Law Bar Association’s survey of those doing publicly funded work. In the meantime, those visiting universities and law schools observe the daily advice being given to law students to avoid publicly funded work, if they wish to have any prospect of repaying student loans which frequently now exceed £40,000. If we are to perpetuate Tim’s belief in “one Bar”, we cannot allow legal aid to decline into a low-paid, low-quality service, inferior to that provided to those who can afford to pay.

Regrettably there is a further threat to family legal aid in the imminent publication of a consultation paper on one-case, one-fee payments. When these were threatened in relation to Crown court work, the Bar showed conclusively that they were objectionable in principle, and the proposal was shelved. Precisely the same objections apply to family law.


Very high cost criminal cases

The LSC presented the new panel contracts on offer in January 2008. The refusal of experienced silks and juniors to sign up demonstrated what market economists know all too well, that driving down prices serves to drive down quality, or causes the market to dry up altogether. It is quite something when Lord Gnome rides to the defence of the profession, and it is Private Eye which points out that the rates on offer are less than barristers were earning 12 years ago.

For nearly a year, the Bar has been working on a new scheme to reward the efficient and expeditious, rather than provide a perverse incentive of payment based on hourly rates. During this time a number of heavy cases have been kept on the rails by barristers working pro bono, to whom the Lord Chancellor has rightly paid a public tribute. It makes a nonsense of talk about the Bar being on strike. But I know that the very modest increases in payment introduced on 24 October are not what the Bar is really seeking: barristers doing this work wish to be sure that there will be a new scheme in place when the existing one expires in July. To that end, Professor Martin Chalkley and Michael Bowes’ Remuneration Committee have been working all hours with the LSC and Ministry of Justice to have ready the bones of a consultation paper in time for Christmas. Counsel’s print deadline prevents me giving you the latest news, but I remain hopeful that we will have made sufficient progress by the time we meet the Lord Chancellor a week before Christmas. Please bear in mind when the consultation paper is published, that it is precisely that. No one has signed up to anything. The profession and individual barristers must have their say before anything is set in stone.
The rest of the agenda for 2009

Do try and read my inaugural speech if you fear the Bar Council is overlooking other issues other than publicly funded fees. I am particularly concerned at the way in which the work on which the young Bar used to cut its teeth is drying up, as the CPS takes more and more in-house, and higher court advocates seek greener pastures than litigators’ graduated fees. This trend is so important to the continuation of a healthy self-employed sector of our profession that it requires the widest possible debate. Without ventilating the issue, we face death by a thousand cuts. By debating it, we can show how “one Bar” can thrive. That would be the best way to thank Tim for all he did for the profession.


Desmond Browne QC, Chairman

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