Following the Bar Council’s resolution on Saturday 5 November, she led the way in articulating our disquiet at the ill-informed attack on the judiciary and the failure of the Lord Chancellor to deliver a swift and robust defence. But I have also witnessed first-hand her unstinting and skillful work throughout the year on behalf of our profession, much of it less newsworthy but all of it important.
I come to the Chairmanship in 2017 from the perspective of a Circuiteer initially drawn in to the Bar Council by the fight against legal aid cuts, now with my eyes open to other changes to the landscape upon which our still small profession operates. Whilst we will withstand the challenges we face – as we have done for 800 years – we nonetheless need to identify and meet them, especially when, as presently they appear to deter the recruitment and viability of the junior Bar.
I am struck by the fact that as a profession we are ageing. The statistics show that every five years since 1990 the size of the profession overall has increased, but in the last ten years the number of those in practice under ten years’ Call has slightly decreased, more markedly so for those under five years’ Call. The reasons may be complex but one suspects that withdrawal and reduction of legal aid funding, the changes to the civil costs regime, and the increases in court and tribunal fees with a resultant diminution in the number of cases litigated, are some of the factors that have deterred the recruitment and retention of junior barristers.
We need to halt and then reverse this recent trend. A strong, diverse junior Bar is essential if we are to maintain the international reputation not just of the Bar of England and Wales, but of the judiciary who are still overwhelmingly drawn from our number. We must sound the alarm to all those who embark on piecemeal reforms; the public interest is ill-served if the long-term viability of the profession is put at risk by policies which hinder and deter junior barristers.
You will know that Lord Justice Jackson is considering extending Fixed Recoverable Costs (FRC) for almost all civil claims up to £250,000. Suggestions that solicitors will share their (very low) fixed fee with the Bar are optimistic. Litigation without barristers will be to deny the parties and the court the best advocacy. And who doubts that we, compared to other litigation costs, are value for money? Less of the Bar means more delay, less focus, less efficient use of court time. Excluding claimants from access to the Bar will have a negative effect upon access to justice, result in under-settlement of claims, and place consequential financial strains upon society. So the profession needs to persuade Sir Rupert Jackson and others to accommodate within the scheme some mechanism or criteria for allowing the recoverability of costs reasonably incurred in the instruction of counsel at each critical stage of the litigation.
As to legal aid and Crown court advocacy, we have helped the government design an entirely new Advocates’ Graduated Fee Scheme (AGFS) which restores payment commensurate with the gravity of the case and the skill and responsibility required to defend it. It is a scheme less vulnerable to factors beyond the control of the advocate and, if adopted, will better reward career progression. It has many other advantages over the current discredited scheme. I am hoping that as you read this the new scheme will be out for consultation. It is the product of about two years of unstinting effort by Circuiteers and CBA representatives, senior and junior. We owe a huge debt to Richard Wright QC in particular. I hope the new scheme will restore some confidence in the criminal Bar as a career choice for able advocates. If it does it may go some way to encourage chambers to recruit and retain youngsters. But we need also to press for reform to ensure that the best advocates are instructed. As Sir Bill Jeffrey in a report commissioned by the last government put it: ‘As it exists now the market could scarcely be argued to be operating competitively or in such a way as to optimise quality.’ Every year the proportion of the AGFS spent on in-house advocates increases at the expense of the independent referral Bar. Very few would argue that this is a result of fair competition. There is an obvious strong public interest in public funds being spent on the best available advocates. We have suggested that the Legal Aid Agency ought to operate a ‘purchaser’s panel’, with advocates graded according to training, skill and experience. Judges, and leading representatives from each branch of the profession should assess and grade applications in a system akin to but more robust than the CPS grading system. This is not Bar-protectionism; rather it protects and enhances the best advocacy.
Finally, we have an opportunity at long last to do something about our profession’s entrance exam. Aspiring barristers often approach the BPTC already heavily in debt. The current course costs are too high and so is the failure rate. It is plain that many who sign up for the course have little prospect of passing and an even lower prospect of obtaining pupillage. This is indefensible. The Council of the Inns of Court proposal, supported by the Bar Council, is that a two-part exam, Part 1 of which can be taken relatively cheaply, with Part 2 only available to those who pass Part 1, is fairer, better value, and an obvious way of improving social mobility. I encourage you to read the article in this edition by Guy Fetherstonhaugh QC, which provides more detail and links to the Bar Standards Board’s consultation. It is critical the BSB hears your voice.
So let us focus in 2017 on opening the door wider to young talent and enabling fair competition for the junior Bar, in the public interest.
Andrew Langdon QC is Chairman of the Bar for 2017