Inevitably – and rightly – much of my focus recently has been on the criminal Bar, and the action it is taking. I know from what many of you tell me that you support me in this, including those whose practices and experiences are very different from crime. You recognise the importance of the criminal Bar – and, indeed, the publicly funded Bar wherever it still survives – to the Bar as a whole, to access to justice, and to the rule of law.
But that does not mean that I have forgotten the rest of you, nor will I. It is a rare day in which I am not also involved in dealing with or giving thought to some of our broader strands of work that affect everyone: most prominently, perhaps, court reform and modernisation, equality and diversity, recruitment and retention, and Brexit. But that is still only a part of what we do, and I want to take the opportunity this month to focus briefly on three other areas.
Civil Liability Bill
The Bar Council is able to put the weight of the profession behind causes that may affect only some, but are important to them. This is particularly the case in Parliament. While we will always support rule of law issues affecting the profession as a whole – such as our work seeking to protect legal professional privilege under the Data Protection Bill – we can help on other issues too. Our current work with the Personal Injuries Bar Association (PIBA) on the Civil Liability Bill is a classic example. PIBA has the expertise in the field. We can help them to make that count in Parliament, with the right sort of intervention, in the right places, and when it will have the greatest impact. This is a classic example, too, of where the interests of one part of the profession coincide with protecting access to justice: the impact on claimants, the courts and the profession from proposals to raise the small claims limit, and the doubtful evidence and assumptions on which some of the proposals are based, are all points that we can rightly pursue on behalf of the whole profession. We also have in mind that what has happened in the personal injury sector has all too often spread elsewhere: if a wrongheaded proposal is not nipped in the bud here, then the battle may be harder to win later in other areas.
In doing this, we also improve the profile of the profession in Parliament, we showcase our expertise, and we demonstrate how we are concerned with the public interest and not narrow self-interest, and so should be listened to with care. We cannot always succeed in securing changes to legislation, but we deliver regularly and effectively on those other benefits, which then helps the profession next time around.
In supporting the personal injury Bar, we are also supporting both access to justice and an important area of practice which has a significant impact on the viability of many specialist and mixed sets, and many barristers with mixed practices (particularly in their early years), especially outside London. It is an area seeing developments that others do not face – or at least, not yet – such as the ‘commoditisation’ of cases, the exclusion of the Bar from preparatory work, difficulty in moving on to more challenging work, and the use of payment arrangements such as CFAs (conditional fee agreements) in a way that makes practice much more difficult financially.
The future of the profession
One of the Bar Council’s more important roles must be to look ahead to what the profession may face in the future. Court reform is an obvious part of this, on which I shall have more to say in a future column, but it also involves thinking about where we may be heading, and analysing the data that we have – and identifying what more we need – in order to help the profession understand what is happening to it.
We are about to start publishing the results of last year’s Working Lives survey. The key messages will be essential reading: for us, for policy makers in government, and for the judiciary. They will also reinforce what I have been saying throughout my time as Chair about the growing threats to the quality of working life, the retention of women, morale, and financial viability for those doing publicly funded work.
We are also digging into the detail behind the recent reports on access to the profession, which is of real concern to everyone, in the hope of being able to identify not just the underlying issues but targeted measures that are in the profession’s own hands to make a difference.
And then there is the work on which we are engaged at the moment, to gain greater understanding about what has been happening with the recruitment and retention of the most junior barristers in criminal work. In some ways, I hope that this does not prove what I am consistently told anecdotally, but I anticipate and fear that it will.
The future of civil and family legal aid and access to justice
Finally, the LASPO review is upon us; but proceeding slowly. Our working group is already established, with representation from all of the practice areas most affected, and an intention to coordinate with SBAs (specialist Bar associations) who also have an interest. There is still a sense that there may be a little more momentum behind legal aid, and this remains a priority issue; but that does not mean that we should not also be looking at what else can be done to improve access to justice, whether through the use of technology or otherwise, and supporting viable and effective ideas from Her Majesty’s Courts and Tribunals Service.
A final thought
One thread runs through all of this: there is much to be done on issues that affect us all. The Bar Council is on the case. Please support us in doing this. You can help to mould our futures, or let it be done to us by others. I know what I would rather see happen.
Contributor Andrew Walker QC, Chair of the Bar