Truth and Power

The necessity for Government to heed history and recognise the limits of its powers; the Bar’s three year engagement with the Government on fees; the value of the Fees Collection Office; and the International Rule of Law lecture.

One thousand years ago, on 3 February 1014, Sweyn Forkbeard died and was succeeded by his son, Canute. After a few years spent securing his position as King of England, Canute went on to reign until 1035. Historians agree that he ruled well but, as often happens with public figures, he is remembered today for one thing only – the day he commanded the tide not to come in.

 

The tide did not heed Canute’s command, but came in anyway, in an episode which is generally taken to illustrate Canute’s folly (see, e.g., 1066 and All That). That is why Ryan Giggs was
compared to Canute when he tried using an injunction to stop the world finding out what the world was already talking (or blogging and tweeting) about. But the original, 12th century, version by Henry of Huntingdon put a very different spin on the story. He presented it as, in effect, a publicity stunt: Canute’s aim was to demonstrate his awareness of the limits of his (or any mortal authority’s) powers.

Either way, the story reminds us that there are limits on the powers of those in authority, and that it is wise to know the limits of one’s own powers. For example, the Government may have the power to reduce the fees which it is willing to pay to advocates by 30%, but it does not have the power to compel advocates to agree to work for those fees. Likewise, the Government may have the power to introduce these and other cuts, but it does not have the power to introduce cuts on
this scale without causing damage to our criminal justice system.

One of the roles of the independent advocate is to speak truth to power. That is what the Bar Council, the Specialist Bar Associations, the Circuits and the other professional bodies have been doing consistently over recent years in relation to changes to legal aid.

So, for example, in 2011 and 2012, after submitting a detailed 170-page response to the Government’s proposed legal aid changes, the Bar Council was heavily engaged in lobbying against the Legal Aid, Sentencing and Punishment of Offenders Bill, inflicting 14 defeats on the
Government in the Lords.

In 2013, the Bar Council responded to the April and September consultation papers on ‘Transforming Legal Aid’. In addition to detailed and powerfully argued responses, supported by expert statistical and economic input, the Bar Council conducted a planned and sustained media campaign, had numerous and regular meetings with Ministers and officials from the Ministry of Justice and the Legal Aid Agency and reached out to politicians on all sides and in both Houses of Parliament. The Bar Council wrote hundreds of letters, met backbenchers and opposition spokesmen, briefed MPs and peers for parliamentary debates, participated in meetings of the All Party Parliamentary Groups on Legal and Constitutional Affairs and on Legal Aid, gave evidence to the Commons’ Justice Committee, made submissions to the Lords’ Scrutiny Committee and to the Joint Parliamentary Committee on Statutory Instruments and participated in fringe meetings at the main Party Conferences, briefing party members.

Lord Carlile QC arranged a debate in the House of Lords in December on the statutory instruments concerning VHCCs. All speakers except the (now-departed) minister, Lord McNally, spoke powerfully against the changes. More parliamentary debates are planned (and, by the time you read this, may have taken place) on the statutory instruments which reduce the scope of legal aid for prison law and make changes to civil legal aid. Meanwhile, I was outside Westminster Magistrates’ Court and Southwark Crown Court on 6 January 2014 and, as I said in The Times, I thought it was a very clear demonstration of the strength of feeling about the proposed cuts.

As with any aspect of practice, issues concerning fees can involve matters of professional conduct, and the Bar Council’s Ethical Enquires Helpline is there to provide advice when needed. I also want to say something about the Bar Council’s Fees Collection Office, as recent rule
changes have led to some misconceptions. The Office helps barristers collect: (a) fees due for work undertaken on the old Terms of Work/Withdrawal of Credit scheme (annexes G1 and G2 to the old Code of Conduct); (b) fees due for work covered by full publicly-funded certifi cates; or (c) fees due pursuant to a judgment or an arbitral award (including an award by a Joint Tribunal).

In the last three years, the Office received 6,564 new cases and barristers received £6.36 million in fees from cases referred to the Office. Solicitors (or other authorised persons) who do not pay fees due are placed on the List of Defaulting Solicitors. The new BSB Handbook provides (in rule rC30.7.b) that the cab rank rule does not apply to instructions from solicitors on this list.

Contrary to a widespread belief, the Office continues, with the Law Society, to administer Joint Tribunals, 80 of which were set up between 2011 and 2013, to decide disputes concerning over £1m in fees.

Finally, I must mention the International Rule of Law Lecture on 8 January 2014, when I had the pleasure of introducing Chief Justice Beverley McLachlin: both the first woman, and the
longest serving, Chief Justice of Canada, and an excellent speaker. Middle Temple Hall was packed to hear her speech on challenges to the open court principle, including the Justice and Security Act 2013.

Nicholas Lavender QC, Chairman of the Bar

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