Alistair MacDonald QC is the first Chairman of the Bar in this millennium who comes to the job from a Circuit. Scot by parentage, Lancastrian by birth and practising in Yorkshire, he is acutely aware that there is life outside London.
As it has been 18 months since he became Vice-Chairman-Elect, I asked him what has he been planning as his own initiative for 2015? “What I would like to do is to expand the amount of specialist work on the Circuits. I want to take advantage of the excellence of the specialist London Bar and spread it more widely.” This includes the commercial cases which require a Silk and which go to London chambers because members of the local Bar lack experience. Alistair’s proposal is a system by which the larger local solicitors’ firms “can take junior barristers in as interns, train them in their specialist areas with a view to giving them small work to start with”. “I want to expand the repertoire” of Circuit work beyond publicly funded criminal cases. He cited the example of the Administrative Court which now successfully sits in the larger regional centres. He has already spoken about his proposal to solicitors in Leeds, where his own chambers are, “but I would like to take it forward on a national basis”.
His interest in this doubtless reflects his own experience. His degree is in fact in biochemistry. Like a number of his predecessors, there were no lawyers in the family, although his sister became a solicitor and his son is a barrister. For eight years he worked at various research institutes. “There was no future in in it,” though, since all the projects were based on one or two years’ grant money. Looking ahead, “I wanted to be a barrister”, but with no legal background he began as a volunteer at the Fulham Advice Centre. In due course he qualified and got a pupillage in London, but when marshalling for the then Mr Justice Mustill in Leeds he met the legendary Gilbert Gray QC.
Gray invited him to his chambers in Leeds, which had a number of “really excellent people”. He was offered a place and made his career there. At first, half of his practice was personal injury work, in particular for the National Union of Miners, the TGWU and ICI but on Circuit there was not the volume of such work for a QC. As he reached the stage of applying for Silk, “you pretty well have to do crime”. He has done a lot of defending and prosecuting in the most serious cases, some with complex scientific and medical evidence. He became joint head of chambers in 2011 and Leader of the North Eastern Circuit in 2012, having served for several years as its Director of Continuing Education.
With this criminal background it is not surprising that Alistair’s other great aim for 2015 is to resolve negotiations between the Government and the Bar on criminal legal aid, “in the sense that I would like to ensure we come to some sort of permanent arrangement so that the fees paid are fair and so the Bar can feel properly rewarded for the efforts it makes. I would also like to negotiate with the Ministry about how we are going to negotiate a means by which our fees can be kept up to date.” I pointed out that that system had existed in the past but literally disappeared in the present century, to be replaced by the Carter process and then the series of cuts under governments of both main parties. Surely what he was talking about required an act of political will? He agreed that it did but “we’ve got to find some way to resolve this so the Bar doesn’t remain a political football every time we have a row about it. I am satisfied the Government does understand that now.” He did not think the Opposition thinks very differently from the present government, but he has not yet discussed the issue with them. Being a Circuit Leader since 2012 has meant that he has been at the heart of a momentous decision made by the criminal Bar.
Since 2006 solicitor advocates have made large incursions into what had been the Bar’s monopoly, unhindered because there is no evidence-based mechanism to weed out the less competent of them. I suggested that the Quality Assurance Scheme for Advocates (QASA) is just such a mechanism, and yet the criminal Bar has stoutly resisted it for four years; surely they realised that this was a balancing exercise; and that it would have been preferable to protect jobs and quality through having a weeding-out mechanism even if it meant putting aside for two years their objections to matters such as “plea-only advocates” who had already been part of the Crown court scene for years?
Alistair is keenly aware of what the choices were and what was chosen: “That is the judgment the Bar came to,” he replied. As a Circuit Leader, he had put both sides of the argument to his members, and there were long discussions. “I saw that as a form of leadership, to give them the opportunity to decide. I am there to reflect their views.” He himself was in favour of a regulatory system but the members voted to boycott QASA. According to the Jeffrey Review, solicitor advocates now do 24% of Crown court trials and 40% of pleas.
In the long run, he is in favour of ticketing for those doing cases involving vulnerable witnesses and defendants. However, a system of approval is not practicable at present. It is a mammoth undertaking to set up a training programme for those conducting this work although the Advocacy Training Council, Circuits and Bar Council are well advanced in this task. “I certainly take the view that there is a need for rigorous training [he cited the vulnerable witness module at the Keble Advanced Advocacy Course as what he has in mind] for all advocates dealing with vulnerable witnesses. I want every vulnerable witness to be treated with courtesy and care.”
I questioned him further about quality in the light of what a judge had recently said to me, namely, that the quality of advocacy was suffering due to the demoralisation of the criminal Bar. I recalled that it had been said at the time of the proposed cuts that if one pays an advocate less, eventually he will work less hard. Was the criminal Bar now fulfilling its own prophecy? Alistair had seen no diminution in standards himself, “barristers know what their duties are”, but if rules were not being applied because counsel is demoralised “then the answer is to make sure that the payment of fees is fair, so people think it is fair”.
After the Jeffrey Review, a number of committees were set up and Alistair became head of the one to consider business models. What was the progress report on that? “It has proved to be a large task, beyond the capability of someone part time” so a core officer of the Bar Council has been tasked to produce well-researched models and advice for the Bar by the time the Bar Standards Board obtains authority to regulate entities. He himself has been looking at different jurisdictions “to see how they operate, because they are working models of different ways of doing things”. “We are not being prescriptive”: the models will simply be there “so if they suit that set of chambers or entity, they have a model they can adopt”.
Like his predecessors, Alistair is aware of how many more people want to join the Bar than there are places. With his non-legal background and education at the local grammar school and then Bath University, he said he would not have been a “prime candidate” for entry in the early 1980s. I pointed out that the statistics are now even more extreme: 45% of those under three years’ Call went to Oxbridge and 41% have Firsts. “What you can’t do is to penalise people for success,” he said, if they have achieved high academic honours, but “what we’ve done wrong is to fail to understand how people from less advantaged backgrounds” have reached a high level of achievement, by, say, being the first generation in their family to go to university, even if they have not achieved stellar results. In his chambers he has made sure that allowances are made when considering applications for pupillage.
When I asked how one can get other chambers to follow suit he said, “by persuasion” and “I fully accept as Chairman of the Bar it is my responsibility to do everything I can to make sure that the Bar is as representative of the population and is fair to entrants as possible.” When I suggested that the Bar is snobbish about brilliance, he replied, “It may be the definition of brilliance we get wrong.”
Finally I asked if he could imagine himself ever having to say to the Bar, “You don’t want to hear this, but for your own good I have to say it.” “I think I did that with QASA,” he said. “If push came to shove, if it were absolutely necessary, I would do what I have always done, analysed the arguments.”
“An important aspect of leadership is not to be a dictator but to put the arguments, seek to persuade but you are in the end, bound by your constituents. There is no point in advocating a course of action which you know is inimical to the vast majority of the practising Bar.”