Tea leaves and crystal balls

In these fast-moving and turbulent times, the Bar Council’s safeguarding of our profession is a surety – for now


Where does time go? So many things are moving so fast now that by the time this column is published, whatever I have written about is likely to be out of date.

When I wrote my last column, the Criminal Bar Association ballot on action had not been announced. By the time my column published the ballot had almost closed. As I write this column, the second ballot on acceptance of the Ministry of Justice and Crown Prosecution Service proposal has not yet been launched but will, I anticipate, have been concluded by the time of publication.

On the international front, news has just broken that the controversial Hong Kong Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 had been suspended, but not dropped. The Bar and Law Society Human Rights Committees issued a joint document criticising it and the Bar Council is monitoring the position. Whether the Bill will be dropped completely or re-introduced is anybody’s guess. The Bar Council maintains links with the Hong Kong Bar as it does with many Bar associations across the world. The International Committee and the Human Rights Committee remain vigilant and supportive of both lawyers across the globe who find themselves the subject of harassment or worse and jurisdictions which face obvious problems regarding the rule of law.

Closer to home, the first round of the Tory Leadership contest has just concluded. History suggests that the favourite rarely wins a Tory leadership election, but in these turbulent times, what is the point of me speculating on that topic? What is of most concern to me, though, and not just because I may have to be making welcoming speeches, is the thought that, once again, we might see new Secretaries of State, Ministers or Law Officers. Whatever happens, I hope that these posts are considered very carefully when appointments are made. Whether you like their politics and policies or not, the current Attorney General, Lord Chancellor and Home Secretary do seem to have realised that our justice system must be looked at more holistically. It would be regrettable if they were to be swept away and their more enlightened approach with them.

Of course, the political turmoil arises from Brexit. I had thought I might be the first Chair of the Bar who had to deal with a post-Brexit landscape. Whether that comes to pass remains to be seen. It may be that my December column will not be a round-up of my year but deals instead with the post-Brexit position. But then again it may not. The Bar Council’s International and EU Law Committees, together with the Brexit Working Group, are working hard to ensure that justice is not a second-class citizen in a post-Brexit world.

In Parliament two Bills have taken up much Bar Council time. The Courts and Tribunals (Online Procedure) Bill was considered in committee by the House of Lords, when no fewer than three former Lords Chief Justice and one former Lord Chancellor spoke. Lord Keen, on behalf of the government, said he would consider several matters that were raised but made no promises. The Sentencing (Pre-Consolidation) Amendments Bill was also considered by the Lords and received cross-party welcome. This relates to the Law Commission’s proposal for a Sentencing Code which should make sentencing in the criminal courts far less of a minefield than hitherto. Whether sufficient parliamentary time is given to get it onto the statute book remains to be seen. The Bar Council will do all it can to try to ensure that it does.

With regard to regulation, the Bar Council has submitted a further response to the Legal Services Board’s (LSB) consultation on Internal Governance Rules. You might not think that this matter is guaranteed to quicken pulses but if the LSB’s proposals are implemented in their current form, the sustainability of the Bar Council, based on the so-called B+ model of regulation approved by Parliament in 2007, will be placed in doubt. Under current arrangements the Bar Council shares services with the Bar’s independent regulator (the Bar Standards Board). If the BSB and the Bar Council have to disaggregate these services and instead separately commission them, the additional costs and burdens on the profession will be heavy. We had previously made the point that the LSB’s proposals were ultra vires. The LSB reassessed its position and changed its approach in relation to some, but not all the proposed rules. We have reiterated our position that their proposals are still ultra vires and we must now await the LSB’s final decision.

It will not surprise any of you that I do not have a crystal ball and I do not use leaf tea, so whatever I try to write on any of the above issues will be largely speculation. What I can assure you is that the dedicated team at the Bar Council, assisted tirelessly by many members of the Bar who give their time for free, will do all we can to ensure that these issues have outcomes which are to the benefit of the Bar and in the public interest.

Much of what is being done on all these fronts (and more) is funded by the voluntary Bar Representation Fee (BRF). I am saddened to see that the uptake across the Bar is still only 52%. May I encourage those of you who are not paying to reconsider your decision? If more members of the Bar paid, we could do more to support the Bar and do more internationally. It is a small price to pay to safeguard our profession for the future.

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Richard Atkins QC

Richard Atkins QC, Chair of the Bar