Stability for the publicly funded Bar, modernisation for all barristers - 2010 inaugural speech

SECURING stability for the publicly funded Bar and the need for all barristers to modernise in the fast-moving legal landscape have been set at the heart of the agenda for 2010 by incoming Bar Council Chairman, Nicholas Green QC.

The leading regulatory and commercial lawyer, who practises at Brick Court Chambers, told a Bar Council meeting in London that the pressures on barristers doing publicly funded work were ‘potentially devastating’. He said:

‘Cuts in legal aid pay, and competition for prosecution and defence work meant that pupillages to train young barristers were drying up in many parts of the country. Experienced barristers were often now ‘sitting idle’. Young, female and black and minority ethnic (BME) members of the Bar were being hit hardest.

The Bar has made great strides in recent years to improve diversity and equality in the profession. These very positive steps are jeopardised by recent Government cuts, which do nothing to make the profession a more attractive place to come for a student saddled with a substantial debt as he or she leaves education and training,’

He condemned recent cuts in family and criminal legal aid, contrasting Ministerial and civil servants’ pay increases of 1% with reductions of 18% in legal aid pay.

In the profession’s strongest warning yet over the legal aid crisis, Nicholas Green QC said:

‘When members of the Bar see civil servants and Ministers taking an 18% pay cut, then we shall be silent. Until then we shall challenge unfair and irrational pay cuts with the utmost vigour.’ As rates declined, the risk was that there would be insufficient advocates prepared to take on the cases.

Emphasising that he sought a settlement with the Crown Prosecution Service over its rising use of in-house counsel, Mr Green said that in the Prosecution of Offences Act 1985, Parliament had expressly envisaged separation between the charging authority and the person conducting the trial.

He warned:

‘Parliament has never sanctioned the creation of a nationalised prosecution advocacy service. The creation of such a body has profound implications. Advocates will spend an entire career in a prosecutorial organisation and they might over time become “prosecution-minded”’ It was no coincidence that recent Directors of Public Prosecutions had made their names as leading defence advocates. Mr Green told the meeting, ‘Public and Parliament should debate the issue ‘before mission creep becomes mission accomplished’.

Despite his concerns, he emphasised that his goal was to unify the profession, whether employed or in private practice:

‘There is far more that binds us than parts us. We share a single set of values and traditions and an agreement will help us to heal the rift.’
Turning to moves to liberalise the rules governing the Bar’s provision of legal services, Nicholas Green QC said that these were changes that could not be ignored.

He said:

‘We do not have available to us the luxury of Canute-like opposition’ Moves by the Bar Standards Board to permit partnerships between barristers and other new business structures were to be welcomed. A menu of options was emerging, including procurement companies that would enable chambers to bid for more contracts.

‘Over the next 12 months the Bar must begin to examine its methods of working. New choices on the menu will not appeal to all. But for some they may be critical.’

Looking ahead to Lord Justice Jackson’s forthcoming report on costs, Mr Green said that there were important opportunities, beyond Conditional Fee Agreements (CFAs), to open up access to the civil courts. These included the mooted Contingent Legal Aid Funds, which could be resourced by a court award of costs on top of damages rather than from the claimant’s damages themselves.

He continued:

‘In future, all barristers would need to define themselves by what they do. We are still predominantly advocacy specialists. We are specialist advisors. We are still essentially a referral service. The Bar has always represented a pool of very high quality specialist advice. We have a strong ethos as a profession that our work is in the public interest. The cab rank rule and the fundamental acknowledgement of our duty to the Court are still very important. The profession has a stellar record of pro bono work.’

He foresaw in future, the Bar might consider opening its doors to all specialist advocates, including solicitor advocates. Nicholas Green QC said he would be introducing measures to improve the internal operations of the Bar Council and its secretariat, inparticular to improve communication with profession. A panel of experienced juniors would be drafted in to assist with the Bar’s representations to Government and more widely.