A range of experience, but common heritage

Four-Bar linkage: Andrew Walker QC on the value of support from fellow Bars in our quest for decent legal aid provision

Twice a year, the Bar Council Chief Executive, Malcolm Cree and I get together with our counterparts from Scotland, Northern Ireland, and the Republic of Ireland. We discuss developments in our respective jurisdictions, report problems we are each experiencing, and exchange ideas and information that may be of help to one another, or to all of us together. We can give support in times of trouble, and learn from each others’ successes and setbacks. The Bar of England and Wales may be five times bigger than the other three Bars together, but our size alone does not protect us. The value of our links and friendship – particularly when dealing with threats from our respective governments and politicians – can be very real.

We have strong relationships with many other referral Bars, of course, not least because we are in a minority across the world. The International Council of Advocates and Barristers, for example, has just ten member Bars, and 15 guest Bars. All share historical ties and a common law heritage, in whole or in part. All face issues peculiar to referral Bars, and we need to work together. For the four Bars on either side of the Irish Sea, our geography, heritage and ties just happen to be particularly close.

The discussions at our June 2018 ‘Four Bars’ meeting were timely on several fronts; none more so than in relation to legal aid.

The criminal Bar in England and Wales had just voted, by a very narrow majority, to accept the proposal from the Ministry of Justice (‘MoJ’) in relation to criminal defence legal aid for advocates (through the Advocates’ Graduated Fee Scheme). Our colleagues had been following the action closely, and were keen to hear our reflections on the outcome of the vote, and the way ahead.

More widely, while there are challenges in all four jurisdictions, England and Wales seem to have suffered more than others in the aftermath of the financial crisis. Legal aid in Scotland, in particular, is still available in a way that is possible only in the dreams of those of us south of the border. Scotland has also been engaged in an independent review of legal aid, and during our joint evidence session to the House of Commons Justice Committee earlier the same week, Angela Rafferty QC (Chair of the Criminal Bar Association) and I were asked about whether the Scottish approach to review was one that ought to be followed in England and Wales. We said we would welcome legal aid being taken out of the political arena, but the prospect of this seems rather distant in the light of our experience of the dramatic changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), and the constrained scope of the post-legislative review in which the MoJ is currently engaged. The Bach Commission may have hoped for a return to a cross-party consensus on legal aid, but there are few signs of such a consensus emerging as yet.

We have much to learn – and potentially to gain – from the experience of our colleagues in Scotland, Ireland and Northern Ireland; and wider international support may yet be harnessed in arguing for better legal aid provision in England and Wales, even if only through government appreciation of the reputational implications of an inadequate system. This is but one example of how we can draw strength from the legal profession across Europe and internationally.

Between the regions and Circuits of England and Wales we share the closest heritage of all, of course, not least through being members of a single Bar practising in a single legal jurisdiction. But that does not mean that there is not a wide diversity within our own Bar. Practice in London is not the same as in our other major cities in England and Wales; and practice outside the major cities is different again. This gives rise to varying perspectives, stresses and concerns. It can also lead to tension. London dominates the profession in terms of numbers but the Bar Council strives to represent all of its members and to strike the right balance between them. We continue to argue for the importance of justice being delivered locally; and when I am referred to internationally as representing the ‘English Bar’, I make a point of reminding them that my Bar is that of both England and Wales combined.

Wherever we may practise, though, access to justice is a major concern, and the Bar Council seizes every opportunity to highlight this. An example this month came about by an unexpected route.

It may have passed the notice of most practitioners in England, but Lord Thomas is currently leading a Commission on Justice in Wales. The Commission’s task is to review the operation of the justice system in Wales, and to set a long term vision for its future. The Wales and Chester Circuit submitted a paper to the Commission, which included summary evidence about the state of justice, and of access to justice, in Wales. The Bar Council supported that evidence. Many of the same problems exist in parts of England too, especially where court closures, weak transport links, and poor public transport, are taking courts and the delivery of justice away from local communities, but large parts of Wales suffer from this as much as, if not more than, anywhere. This is especially the case for the many communities in Wales for whom Welsh is their first language, which itself brings further challenges in ensuring that they can secure advice and representation, and the conduct of court and tribunal proceedings, in their mother tongue.

By supporting the Circuit’s response, and drawing the issues to the attention of the local press, we have been able to put our weight behind the Circuit’s knowledge of local conditions, and to secure some sympathetic reporting. We would do the same for all Circuits. Your Bar Council is here to support you, wherever you may be.

Contributor, Andrew Walker QC, Chair of the Bar

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Andrew Walker QC

Chair of the Bar