It’s a funny old world

The plight of the criminal Bar; the independence of the Bar threatened by fee cuts, referral fees and price competitive tendering; and such developments under scrutiny from the rest of the common law world

Contributor
Michael Todd QC, Chairman of the Bar

It’s a funny old world. For years the criminal Bar have thought of themselves as the “real barristers”; and, in a sense, justifiably so. Traditionally the Bar was the profession of Advocates. And the criminal Bar have always prided themselves as being the true advocates at the Bar. Whilst other practitioners at the Bar undertake advocacy services to a greater or lesser extent, it is the criminal Bar who are on their “hind legs” in Court, day in and day out, prosecuting, defending, protecting the vulnerable, exercising their advocacy skills more in the public interest than for the money it brings in.

Yet it appears that may all now change.

That the criminal Bar simply cannot be in it for the money must be clear. The case studies in the articles written by Franny Rabkin in the Financial Times of 8 June are testament to that: Catherine Richards (name changed), a criminal barrister of 15 years experience, whose gross income of £25,000 last year represented a 75% reduction on that of the previous year; Sophie Hutchinson (name changed), a criminal (and regulatory) barrister of 6 years, 60% of whose taxable income of £42,000 had come from the regulatory work into which she has had to diversify her practice, away from the criminal work she would rather, but can no longer afford to, do.

Is it therefore any surprise that the criminal Bar fears, and warns, that it may not, in the future, be possible to recruit and to retain the most accomplished, the best, within the profession, not just because the rewards elsewhere are greater (which they undoubtedly are) but because the rewards at the criminal Bar are simply too little.

The so-called apocryphal stories have become real life stories. The figures released by the Bar Standards Board show increasing numbers at the Bar giving notification that they are facing bankruptcy - 130 within the last three years - putting paid to the characterisation of all barristers as “fat cats.”  Successive fee cuts must inevitably make more attractive, to those finding themselves in dire financial straits, referral fees. And referral fees threaten the independence of the Bar, and the services it provides.

Our independence, like our integrity, are essential characteristics of the advocate, both of which characteristics we value, and must at all costs protect. Our integrity cannot be in doubt. Yet the independence of the criminal Bar is under siege.

Let us just remember what the late Tom Bingham said in his seminal work, The Rule of Law. He said: “Scarcely less important than an independent judiciary is an independent legal profession, fearless in its representation of those who cannot represent themselves, however unpopular or distasteful their case may be.But it is not only fee cuts and referral fees which can threaten that independence.

Price Competitive Tendering (PCT) (and I use that term advisedly rather than Best Value Tendering (BVT), because I do not see that value is brought into the equation) and over-regulation are not only drivers for change, but the cause of change. Their advent, heralded as being in the “consumer interest”, is likely to undermine the public interest which the criminal Bar, as advocates, serve.

A mark of our independence historically has been the primacy of our duty to the Court, rather than to our client. Being members of a referral profession has assisted us in maintaining that independence. That duty and the independence of an Advocate are fundamental to the rule of law and the integrity of our justice system.  If “One Case One Fee” (OCOF) is introduced, or is an essential feature of any PCT process, those members of the Bar who are awarded any contracts will, in respect of that work, cease to be members of an independent referral Bar. They will still owe their primary duties to the Court, by reason of our Code of Conduct. But they, or persons with whom they are “associated”, will be undertaking the “litigation work” involved in the case, by virtue of the contract that they, or those others, have with the Legal Services Commission (LSC), and the work will not be referred to them in the traditional sense.

The scheme for regulation, introduced by the Legal Services Act 2007, is seen by many - not just in this jurisdiction but also in other jurisdictions - as having all the hallmarks of encroachment by government upon the independence of our profession. It is not, however, the activities of the BSB which gives rise to the most concern. It is the “influence” and “control” that is being, is perceived to be, or is capable of being, exerted from above that caused many Bar leaders to comment adversely upon our system of regulation at the International Bar Association Bar Leaders’ Conference, which I attended recently in The Hague. I was left in no doubt that our image abroad, the perception of our justice system, has in this regard been tarnished.

That was unwelcome; particularly as the Chairman of the Malaysian Bar Association, after a graphic account of the governmental interference and intimidation suffered by members of that Association when they spoke out on rule of law issues, said that both the Association and the Government would look to see what was happening in our jurisdiction, as we are seen by so many as leading the common law world.

As for the financial cost of our regulation, for the publicly-funded Bar, this cost cannot be passed on to the “consumer”. It is another “tax” on their earnings, another burden, another disincentive to work in the public interest. At the privately-funded Bar, the cost can be, and is, passed on to the consumer, whom the regulation is apparently designed to benefit and protect. Either way the “consumer” pays: in publicly funded matters he/she may well not get the appropriate level and quality of representation; in privately-funded matters the cost will come directly out of their pockets.

We must ensure that in all that we do, our responses to these and other issues are clearly proportionate. And in all that we do, when formulating our strategy, we must examine the potential consequences and we must listen, and not, as so often happens, simply reject any and every principled argument as being motivated by self interest.

Isn’t it strange that if the Government gets its way, in these and other matters, the independent referral Bar, which has been a cornerstone of our justice system for centuries, may well cease to exist?

We should all be careful of what we wish for.

 

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