Nicholas has served on the Bar Council ever since 1994. He was there for the early discussions about solicitors gaining rights of audience and what training that would require. He was on the Bar Council’s education committee, going up and down the country looking at BVC providers at a time when that was the Bar Council’s responsibility. He became an advocacy trainer in his Inn – he now trains trainers – and has taught here and abroad. As a member of the Professional Standards Committee he co-wrote the 7th edition of the Code of Conduct in 2000. He was a member of the Professional Practice Committee, and in due course its Chairman, which meant having to deal with the knottiest issues facing practitioners who called the Bar Council’s ethics helpline. He took part in the debate about setting up a Bar Standards Board in 2005 and later he co-chaired the working group that wrote the Bar Standards Board’s constitution, implementing the rules laid down by the Legal Services Board to govern relations between the Bar Council and the BSB. Unsurprisingly he co-edited the Halsbury title on Barristers.
Nicholas’s own background could not be less ‘traditional’. He was born in the Yorkshire mining village of Royston and is the first male in his family since the mid-19th century not to work in the coal mines – his father was a deputy electrical engineer. “I watched Rumpole of the Bailey” was how he was attracted to the law. In due course he would be Called the same year (1989) that the Royston pit was shut. He went to Queen Elizabeth Grammar School, Wakefield in the last years of the direct grant scheme; got a First at Corpus Christi, Cambridge in Law after two years of Classics in the last years of generous local authority grants and then a BCL at Oxford; was given a now-vanished two-year Inns of Court Studentship which covered the cost of the BVC; and won a Pegasus Scholarship to work in Bermuda and in New Orleans.
Nicholas is deeply concerned about helping people from all backgrounds to come to the Bar and yet at the same time is trying to deal with the problem of numbers. I asked how he could square the circle between the limited number of pupillages and the desire to widen access: “Good question,” he replied. Nicholas served on one of the first committees which tried to tackle this, in the 1990s. Indeed, his wife (HH Judge Dhir QC) served on the Mountfield Committee which proposed a levy on the profession to raise additional funds for scholarships, a recommendation which the profession rejected out of hand. Nicholas would like to identify at an early stage – by awarding scholarships or pupillages – the 400 to 500 students “who you think are likely to find tenancies”. “There is something to be said for having either scholarships like I got or sets of chambers recruiting before the BPTC. The idea that simply in order to know I am good enough to get a pupillage I have to spend £17,500 is in itself” a “considerable incentive to go elsewhere”.
"I asked about the new rule which obliges barristers to report to the Bar Standards Board ‘if you have reasonable grounds to believe that there has been serious misconduct by a barrister...’ Nicholas has great concerns about this, as did the Professional Practice Committee"
In fact some 30% of pupils do secure pupillages before they start the BPTC. His own chambers, Serle Court, gives awards which cover both the BPTC year and pupillage. Nicholas agrees that the Bar seems to have “solved” the gender and even the ethnicity issues at entry, “but there is still the retention issue”. Fortunately there are a growing number of role models. When I interviewed his predecessor in 2012, she expressed concern at the fact that only 8% of Criminal Bar Association members had voted in their last leadership election. She made participation the primary goal of her term as Chairman. Sadly, however, despite a dramatic year for the criminal Bar and a strongly contested election for vice chairman in 2013, there was still roughly an 8% turn-out. If anything proportionally fewer voted in the recent Bar Council elections in which one category had fewer candidates than vacancies. Less than 3% pay to go to the Bar Conference. No one apart from Bar Council members attends the Bar’s AGM.
“I take a broader view of participation,” Nicholas said. “I have always been impressed by the number of people who participate in the life of the profession in all sorts of ways”: Bar Council committees whose numbers are swelled by non-Bar Council members, the Inns, volunteers who help to operate the Circuits and specialist Bar associations, the many advocacy trainers and the even greater number who do pro bono work and work for the Free Representation Unit. “You see quite a diff erent story if you look at it that way.”
With all this to admire about the voluntary work which barristers do, I posed the eternal question of how the Bar can get the message across to the public. “I am a barrister not a PR consultant,” Nicholas said, “but we do have good PR people who help us communicate the message and we keep plugging away”. Barristers help “by doing our job”. I asked about the new rule which obliges barristers to report to the Bar Standards Board “if you have reasonable grounds to believe that there has been serious misconduct by a barrister”. At the same time barristers are forbidden “to make that report without a genuine and reasonably held belief”. Nicholas has great concerns about this, as did the Professional Practice Committee. He painted for me a somewhat alarming picture of commercial litigation: in “hotly contested civil cases”, the parties “on one side or the other would like nothing more than to cause trouble for the lawyer on the other side. Sometimes already they will report the lawyer on the other side for professional misconduct, sometimes it is simply a way of progressing the litigation. I can see diffi cult situations arising for a lawyer who is being told by a client that if you don’t report him, I will report you for not reporting him. All of which is capable of being a distraction from getting on and doing the job” and a “side issue” between the barrister and his client. I suggested that one could trust barristers not to make spurious complaints; “You should trust barristers to observe the code,” he replied.
One sensed that there was more here, something which causes a fundamental if unacknowledged disquiet at the Bar. As with quality assurance, which we talked around since the QASA judicial review was still pending, the new rule both empowers someone to question the conduct of established barristers and includes a compulsory element to it. The Bar sees its world diff erently. As Nicholas put it, “We are open to assessment all the time” simply by appearing in court. That is the self-righting mechanism. “I start from the position that advocacy is an individual skill,” he said; “ours is a competitive profession” in which some people will have more work than others. As things stand now he can see little attraction for barristers wanting to practise other than from chambers. However things can change. Which led to my last question. It is easy for a chairman to lead from behind and to adopt what his members already believe. But surely a time could come when the Chairman needs to say to the Bar, “this is the bad news, this is the reality” and try to find a solution if there is one. Could he think of any issue where he would need to speak to the Bar bluntly but for its own good, whether they wanted to hear this message or not? “Better wait and see what comes out,” he said.
David Wurtzel, Consultant Editor of Counsel