Confidence and mutual congratulation alternating with gloom and the odd shaft of prescience: looking through old issues of Counsel, it is clear that some things never change.
The Michaelmas 1985 issue, our first (we then only appeared quarterly), was a brave beginning and had a leisurely feel to it. Gavin Purves, the first Editor, was assisted by a small but distinguished Editorial Board (Robert Johnson QC, Louis Blom-Cooper QC, Ben Hytner QC and Peter Allsop, soon joined by Anna Guggenheim). There were three pages on “Time Off in Tuscany”, two pages reviewing motor cars, three pages of “the Lord Chancellor dispels mysteries of appointments procedure” (up to a point, Lord Hailsham), photographs of the standing room only AGMs, and practical advice (“how the personal computer is becoming the barrister’s friend”). Up front is the exhortation, “it is up to us to do all in our power to ensure that the Bar retains its rights of audience”. The determination to retain the Bar’s monopoly is never out of print.
Numbers of barristers grew and grew. Michael Hill QC complained in 1986 that the expansion of the Bar in the late 1960s and early 1970s “put such strains on our ability to train our new entrants that the training system was unable to cope”. Such training still did not include advocacy to speak of, but assistance was given in helping the then CLE teach ethics. Hill boasted: “I have been trying to re-establish the idea that the Head of Chambers has a responsibility for the conduct of the members of his chambers and that he has an obligation to discharge that responsibility by maintaining and improving standards”. This of course was neither consistent nor transparent. It was only in 1995 that we developed a new complaints system. Even then, not everyone saw the merit in this. The then Chairman, Peter Goldsmith QC, argued in the magazine, “the public concern in this case is that there is at present no redress for incompetent work. The political reality is that if the proposed scheme is not adopted, a far more stringent scheme, over which we as a profession will have little or no control, will be imposed by statute”. He further warned that “the Labour Party has on its agenda plans to force us to change the way we work”. In due course he became Attorney General in the next Labour government. The complaints system was adopted but the Legal Services Act 2007 was nevertheless enacted.
There was alarm at how the government was changing the rules. In 1994, Christopher Sallon denounced the Criminal Justice and Public Order Bill, which allowed a jury to “draw inferences”, as ending “the citizen’s right of silence at every stage of the criminal process”. One clause of that Bill, which would have required defendants to disclose the names and addresses of witnesses, was dropped, as Goldsmith happily announced in his Chairman’s Column. It came back as s 34 of the Criminal Justice Act 2003.
Not everyone resisted change. As Chairman of the Bar, Peter Scott QC wrote that the Bar finals course was too short and should be combined with pupillage so that Call would be deferred, a proposal which, once raised, took 20 years to put to rest. In 1988 there was one article pointing out to barristers that witnesses did not find it easy to give evidence and that they ought to be treated rather better at court.
A prize for prescience goes to (now Professor) John Spencer. While a Bill was going through Parliament to allow children to give evidence by live link, he argued in 1987 that children should be able to give a video deposition. Videoed evidence-in-chief as a special measure eventually came into effect in July 2002. He coupled his suggestion with the further idea that “the child’s failure to understand the duty to tell the truth affects the weight but not the admissibility of his evidence”. Spencer would have to wait 23 years until the Court of Appeal said just that in R v Barker in 2010.
Thinking the unthinkable
One of the most extraordinary interviews to appear in the magazine was with the then James Munby QC in January 1994. By then Counsel was appearing bi-monthly. There were fewer photographs, few ads, and not much attention given to production values – all that had to wait for the 21st Century. Munby had been appointed to head the Bar’s Policy Unit, set up by the new Chairman, Robert Seabrook QC, who had kicked off his year by writing, “I have heard such nonsense talked and written in the last few months – with absurd talk of ‘the Bar facing collapse’ and the like.” Seabrook conceded that “We are no longer free to decide what is best for ourselves” and informed the Bar that “we no longer operate in a deferential society”. Munby’s team was asked to think the unthinkable. This they duly did. He stated that until recently the Bar was “stuffed full of people from public schools and ancient universities … people who have the absurd idea that we’re gentlemen, not tradesman. Barristers spend many hours in conference castigating clients for running their businesses in the same way as they themselves run their chambers.” Indeed the Bar had “sat on its bottom complacently” for years. He intended to query every rule in the Code of Conduct which appeared to be a restrictive practice. He looked forward to a leaner, fitter, more competitive Bar: recruitment at the bottom would be cut, dead wood would be shaken out in the middle, and the large intake of the 1970s would go by natural wastage. In the end it was all too unthinkable. One trusts though that Lord Justice Munby is a patient man: in 2009 the Bar Standards Board did begin to sweep away those restrictive practices.
Rights of audience
The first restrictive practice to go was of course the monopoly of rights of audience. Even in 1995 Goldsmith noted that there was increasing competition from solicitor-advocates and that the young Bar had less work than it used to, a complaint they have never stopped making. Still, in 1999 the new Chairman, Dan Brennan QC said, “thus far I have seen neither evidence nor enthusiasm from solicitor-advocates to do legal aid work at current fees”.
The guns were now clearly aimed at the new (in 1986) Crown Prosecution Service. The first DPP declared his intention that the CPS staff would have no Crown Court rights. In 1997, the new CBA Chairman, Roy Amlot QC stated “I am wholeheartedly opposed to CPS rights of audience”. In 1994 Christopher Frazer published a study in which he said that the CPS no longer attracts widespread confidence and should be reduced to a “small cadre of high calibre staff” while the task of instructing barristers to prosecute in the Crown Courts should be left to high street solicitors. Hundreds of CPS lawyers did in the end qualify as Crown advocates, under the Attorney Generalship of Peter Goldsmith who as Chairman had insisted that the distinction between the two sides of the profession must remain.
The 1999 Bar Conference was attended by a record 796 members. The Lord Chancellor, Lord Irvine, attended and was criticised in the conference write-up for speaking for 45 minutes from a prepared script covering recent government changes. The next year, 2000, the Chairman, Jonathan Hirst QC, warned against the growing disparity between the earnings of barristers doing publicly funded work and what they could earn doing other work. “If the disparity becomes too great, the incentives will become all too obvious and morale will collapse. The result would be that the Bar ceases to recruit real talent into publicly funded work.”
Under the spotlight
In 2000, Counsel opened its pages to the broadcaster and journalist Jon Snow. In a well meant piece, he conceded that “All media hacks are intimidated by societies they do not understand and cannot easily penetrate.” That included the Bar, which got a bad press because of the “dinings, pupillage, the QC process and the ascent to the Bench … If the world of the Bar is changing, someone has done a bad job of informing the rest of us”. It does not read very differently from what James Munby had said in 1994, but Hirst felt obliged to pacify the expected reaction to this. “It is a sign of a strong profession that it is ready to publish in its professional journal a highly critical and controversial article by a respected journalist.” He went on, “We need to keep all our traditions and practices under the spotlight. To those who fear that the speed of change is too fast, I say you risk being left behind”.
25 years on, the rhetoric is the same.
David Wurtzel is Counsel’s Consultant Editor