Their sacrifice remembered

Remembering the start of the Great War; the recent progress made in preserving criminal advocacy; reviewing business models; LASPO and the LAA figures; and an inquiry into the role of the Lord Chancellor.

The Great War began, for this country, on 4 August 1914, which must rank as one of the saddest days in our history, given the levels of death and destruction which followed. Although described by some as the war to end all wars, it was followed, only 25 years later, by the Second World War, which the United Kingdom entered on 3 September 1939.

The 100th and 75th anniversaries of these two conflicts will be widely commemorated. It is appropriate for us to reflect on the role played by members of our profession. Many fought, many died and many were injured, physically or mentally. Others contributed to the war effort in different ways. Their sacrifice, and their bravery, should not be forgotten.

A veteran of the Second World War, Sir Sydney Kentridge KCMG QC, addressed the annual dinner of the South Eastern Circuit on 27 June 2014. In a characteristically impressive speech, he told us about cases such as the treason trial of 1958-61 in which he represented Nelson Mandela, and used these experiences to illustrate the importance of an independent legal profession and of legal aid, two institutions which provide strong support for the rule of law.

The joint statement made on 7 July 2014 by the Ministry of Justice, the Bar Council, the Criminal Bar Association and the Circuit Leaders touched on both of the matters addressed by Sir Sydney. The Government has confirmed that there will be no further expansion of the state-employed public defender service.

Instead, discussions are to resume as soon as possible on an alternative to the VHCC scheme and on the long term future of criminal advocacy, including the review of the Advocates Graduated Fee Scheme. This is a welcome development, and I am grateful to the leaders of the Criminal Bar Association and the Circuits, and also to the many barristers with experience of VHCCs whom we consulted, for the work which they put in to make this possible.

Following the report of Sir Bill Jeffrey, one of the issues to be addressed is the extent to which it may be appropriate for the criminal Bar to make use of different business models. There would little purpose in promoting business models which merely served to convert barristers’ chambers into solicitors’ firms by another name, but there may be scope for alternatives which preserve and enhance the distinctive strengths of the Bar. This is one of the matters being considered by the Bar Council’s Criminal Justice Review Group chaired by Geoffrey Rivlin QC.

Meanwhile, the Bar Standards Board has made an application to the Legal Services Board for permission to regulate entities set up by barristers, and hopefully this will be possible before the end of the year.

You can read the application on the Legal Services Board’s website.

On 8 July 2014 I gave evidence to the Justice Committee of the House of Commons on the effect of the civil legal aid cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The figures just published by the Legal Aid Agency are striking. Legal aid provided legal help in 205,617 new family cases in 2012/13, but only 42,798 in 2013/14, and in 281,737 new social welfare cases in 2012/13, but only 52,703 in 2013/14. The Government predicted a fall of about 65% from 2009/10 levels, but the actual fall has been more than 80%.

No wonder one of the MPs on the Justice Committee, John McDonnell, said, “It’s not a problem, it’s a nightmare.” The members of the Justice Committee were also troubled to hear of the growing phenomenon of paid McKenzie friends. There are obvious concerns about people making a living out of providing unregulated, uninsured litigation (and sometimes advocacy) services. The Bar Council would be keen to hear of any experiences you may have of dealing with professional McKenzie friends.

Similar issues arise in relation to independent contractors known as solicitors’ agents. In addition, the question has been raised in the Manchester County Court whether, as they claim, they have rights of audience under one of the schedules to the Legal Services Act 2007.

We are grateful to Anthony Speaight QC for a learned and thoughtful opinion which will inform debate on this topic. Again, the Bar Council would be keen to hear of any experiences relating to solicitors’ agents.

I mentioned in the June edition of Counsel the trenchant views expressed by the Joint Committee on Human Rights in relation to the conduct of the Lord Chancellor and the nature of his office. Now the House of Lords Constitution Committee has taken up this issue and is conducting an inquiry into the office of Lord Chancellor.

Issues to be addressed include: Does the Lord Chancellor still have any real powers? Is the position appropriately independent of government? The Committee has issued a call for evidence and you have until 29 August to respond.

A common misunderstanding about the Bar is that we wear black in mourning for Queen Anne, who died 300 years ago, on 1 August 1714. However, as Professor Sir John Baker has pointed out, this is not true. Black gowns were already well established as the Bar’s uniform by 1714, having been adopted on the death of Charles II in 1685.

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