New Year game-changers

A review by Sir Rupert Jackson into the possible extension of a costs regime which has the potential to change the face of civil litigation, not least for the Bar, and the launch of a proposed new method of remuneration of defence advocacy in the Crown court which, if adopted, will shape the future of the criminal Bar.

Couple these two potential game-changers with, say, the ongoing discussion as to how best to preserve access to the EU legal services market post-Brexit, or with the need to defend the independence of the judiciary in the face of an increasing inclination to undermine it by politicians and some factions of the media. Take these four or any one of a host of other contemporary issues which have the potential to affect our destination and it seems as if we are beset as never before with threats or – depending on your stance on each – opportunities.

Except, of course, that it has always been this way for those whose responsibility it is to concentrate on the future and what is good for the Bar. If the representative function of the Bar Council is for anything, it is for precisely that. Practising barristers work hard, often in stressful circumstances and may have little time to attend to future threats and opportunities, however important they may be. So they want us to get on with protecting and promoting their profession’s interests, secure in the knowledge that the ultimate test for what change is good for the Bar is whether it operates in the public interest.

Those of us who represent the Bar need to be selective when we ask the rank-and-file for direct input. They need to trust us to tell them when it is really necessary; when it isn’t we must get on and make the best judgement we can on their behalf.

The great Rex Tedd QC said to me recently, when reminiscing as to his time as a Circuit Leader and events that were then regarded as existential, that he had come to take the view that the Bar was like so many boats, afloat in the dock. Storms came and the boats were agitated and rose and fell on the waves until the storm had passed, and then they became still again, moored at peace in the dock of the bay. It is a reassuring image, but of course sadly nowadays at any rate, not always accurate. The odd boat, sometimes the smaller ones, and often a number of them, become damaged or set adrift.

Thinking of smaller boats, it is worth looking at the statistics. The statistics of those that are practising at the Bar reveal a worrying trend. Whilst the number of us in practice has steadily grown over the years, in the last 10 years the number of those practising who are 10-15 years’ Call, has fallen by 10%; 5-10 years’ Call by 20% and 0-5 years’ Call by 30%. This does not appear to be a blip. It seems sustained, and it means as a profession we are ageing. That is not healthy, and both those within and without the profession who have any influence on what it takes to encourage and nurture the junior Bar need to consider first and foremost the impact of any proposed course of action – or lack of one – on the fact that if we do not attend to this, the Bar will wither on the vine. I have yet to meet anyone credible who thinks that that is desirable.

Ultimately, like Rex Tedd QC, I am an optimist. Why? Because you can’t keep a good idea down. And the good idea that is the independent barrister, fearlessly advising and advocating on behalf of the next client in the queue. Indeed this idea, fashioned over a very long time, is one of our best ideas. Fair competition is all it needs to thrive, and it is fair competition in particular that the junior Bar needs, in order to flourish. Fixed recoverable costs, which deter the instruction of junior counsel, threaten that. Our current advocates’ graduated fee scheme, which deters career progression for the most able advocates, threatens it. The significant increase in the instruction of in-house higher court advocates threatens it.

In May 2014 the government published Sir Bill Jeffrey’s report which it had commissioned into Independent criminal advocacy in England and Wales. Sir Bill found that:

‘As it exists now, the market [for advocacy services] could scarcely be argued to be operating competitively or in such a way as to optimise quality. The group of providers who are manifestly better trained (if not always more experienced) as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price (in a system where fee rates are fixed) nor on quality.’

In response to this identified problem, the government consulted on a range of measures that might help to correct this market failure. One proposal was a legal aid ‘purchaser’s panel’ scheme which would operate to ensure that only those advocates with the requisite skill and experience defend cases of corresponding gravity. Such a scheme, or one like it, is a possible response to the market problem, in the public interest. This consultation closed on 27 November 2015. As yet the government has not responded to it.

Meanwhile the young criminal Bar in particular continues to face a market that is not optimising quality. The civil Bar will face similar problems depending on the outcome of Sir Rupert Jackson’s review.

We need to take our arguments to those in a position to influence and determine policy. They will undoubtedly want to consider the bigger picture, and the bigger picture includes enabling the young Bar to thrive, which they will do in fair competition. And fair competition optimises quality, in the public interest.