Standing together

With the 60th anniversary of the YBC, reflections on past battles for the Bar; the history behind the formation of COMBAR and the introduction of BARCO; the urgent need  for a recorder competition; Magna Carta; and weathering the storms in the fight for justice.

In recent weeks I have attended two birthday celebrations, one marking the 60th anniversary of the Bar Council’s Young Barristers’ Committee (YBC) and the other the 25th anniversary of the Commercial Bar Association (COMBAR). Each gave cause to reflect on the unhappy circumstances in which a now flourishing organisation was formed. The YBC was formed in 1954, in the aftermath of the report of a committee chaired by the Master of the Rolls, Sir Raymond Evershed. That report, while conceding that the junior Bar  were underpaid for important parts of  their work,  recommended a number of reductions in counsel’s fees. At a time when the Bar was declining in numbers, it is no surprise that fears were expressed for its survival.

The Attorney General, Sir Lionel Heald QC, addressed the Bar’s AGM in 1954 in terms which could be used today:
“Obviously if the Junior Bar are not fairly and reasonably remunerated for the work they do, the standards of the profession and ultimately the standards of British justice will suffer.”

The survival of the Bar was brought into question again in 1989, when Lord Mackay’s Green Papers, and especially that on The Work and Organisation of the Legal Profession, were the catalyst for the formation of COMBAR. There was a real concern that we were facing the fusion of the legal profession and the end of the Bar as we knew it. It took a great deal of work from a great many people to ensure that this did not happen. The Bar Council, the Inns, the Circuits and the Specialist Bar Associations were all active in responding to the Green Papers, the subsequent Bill and the arrangements set up under the Courts and Legal Services ct 1990. Changes were made, including to rights of audience, but the Bar adapted and continued to excel in the provision of advocacy. This is a matter of public importance.

As Sir Brian Leveson said on 21 May 2014 in R. v Crawley [2014] EWCA Crim 1028, at §57: “We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.”

More recent changes have included increases in the scope of public access work and the introduction of BARCO, the Bar Council’s escrow service. BARCO offers an escrow account to hold funds required for fees, disbursements or settlements. This in turn allows barristers to secure new business which would not otherwise be practicable. An increasing number of barristers and sets of chambers are coming to see the attractions of BARCO for public access cases or other cases where it is helpful to have peace of mind that fees will be paid when due.

As each day goes by, it becomes more and more a matter of concern that no competition is being held to appoint new recorders. There have been no recorders appointed since 2011. The recorder competition proposed for January 2014 has been postponed, with no new date given.

At a time when the Judicial Appointments Commission regards time spent as a recorder as, in effect, an essential prerequisite to appointment to a full-time judicial post, this is not a good state of affairs. It prevents many able candidates from applying for judicial posts, and deprives the JAC of the opportunity to choose from a wider and more diverse pool of candidates.

This affects not only individuals’ careers, but the composition and diversity of the bench as a whole. There needs to be a recorder  competition soon. Meanwhile, it may  be that the time has come to have a  thorough review of the whole system of appointing and making use of  recorders. Now that the post has become  a necessary step on the way to a full-time appointment, the system should be reviewed with an eye to promoting equality of opportunity for all and thereby encouraging diversity in the part-time, and subsequently the full-time, judiciary.

Next year, we will hear a great deal about the 800th anniversary of Magna Carta, but this month sees the 800th anniversary of a much-overlooked stepping stone to Magna Carta. Since the French won the battle of Bouvines on 27 July 1214, they are better at remembering it than we are. However, the defeat of the English and their allies was doubly significant. Not only did it see the end of King John’s attempts to recover the duchy of Normandy, it also emboldened the English barons to take the actions which led to Runnymede.

Perhaps if John had been there himself, fighting alongside Emperor Otto IV, the Dukes of Brabant and Lorraine and his other allies, things might have turned out differently for Normandy and for England. In 2014, as in 1954 and 1989, it important for the Bar to stand together. Speaking at COMBAR’s dinner, its Chairman, Joe Smouha QC, emphasised the Bar’s unity, saying: “...the criminal Bar provides an incomparable service in the criminal justice system which needs to be treasured... one of the important tasks for COMBAR is to support the criminal Bar... fighting for the whole Bar as a single profession is essential.”

This spirit has been much in evidence this year and will help us weather the present storm, just as we weathered those of 1954 and 1989.

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