United courage

Alistair MacDonald QC, Chairman of the Bar, outlines the issues that will dominate 2015 – criminal legal aid, the crippling effect of LASPO, new business structures and keeping England and Wales the jurisdiction of choice.

Four important areas, will, in my view, dominate 2015. The first is criminal legal aid. No-one reading this needs a detailed reminder of the original proposals.

Tapering, fee cuts and attempts to structure the fee system so as to bring about guilty pleas were all included. Whilst there were references to the value of the Bar to the effectiveness of the criminal justice system, such pious sentiments are valueless when set against the harsh reality of fee cuts, as high as 30%, tapering provisions and the other measures.

The proposals followed deeply damaging fee cuts imposed in recent years and failed to recognise that members of the Bar routinely performed work at weekends, late into the night and early in the morning preparing skeleton arguments and generally ensuring that trials run without delay. And all this was against a background of frustrations caused by the failures of interpreter services, prisoner transport and antiquated IT in the courts.

That was how things stood in April 2013. I pay tribute to the determination and courage of the Bar in resisting what would have been disastrous changes. The united voice of the profession in the form of the Criminal Bar Association, the Bar Council and the Circuit Leaders met with success. It was the pplication of reason and persuasion together with an implacable courtesy throughout. But this time, unlike the many previous occasions upon which we have fought similar battles, the persuasive words were backed up by action.

The unprecedented action of refusing to attend court and the no returns policy had the effect of making the Government realise that the Bar was in deadly earnest. To many, the cuts would have meant the end of the profession as they knew and loved it in any event, so there was nothing more to lose. Those measures worked. The position now is wholly different.

Negotiations with Government officials are proceeding in an atmosphere of cordiality and calm engagement. We have cut the Gordian knot so far as VHCCs are concerned. We are proceeding on the basis of individual contracts tailored to the needs of the case. We have a system now in which the chosen barrister is actively involved in the decision about the rate to be paid for the case. The AGFS system is also the subject of discussion. A panel has been put in place with representatives from the CBA and the Circuits who will be consulted should any proposals be made with a view to a re-structuring or re-ordering of fees.

In addition, we are also pressing ahead with seeking mechanisms in which Bar fees can fairly be kept up to date. Disputes are time-consuming, upsetting and damaging. All the Bar seeks to do is to get on with its job whilst being paid a fair rate for the job. The next area I wish to focus on is the crippling effect upon justice of the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, otherwise known as LASPO. The Bar Council through its staff, members of committees and barrister volunteers worked tirelessly to point out the injustices that the implementation of the provisions were bound to cause. All our wisdom was ignored.

The result was entirely as predicted. The high profile cases dealt with by the President of the Family Division are but the tip of a large iceberg and the courts are clogged with litigants in person. The numbers of those going to mediation have plummeted and, in a huge number of cases, there is no representation and the process to provide for exceptional funding has utterly failed.

So what can we do? There is a section of the Bar Council website where you can report injustices and we will continue to lobby for amendments to the Act. But there is something we can do to help these litigants.

I believe that litigants who are currently paying McKenzie friends would prefer to employ the services of a fully insured and regulated, direct access trained, junior barrister who has carried out pupillage and has the benefit of operating from chambers, if they did but know that they had that option. The costs of doing so would be the same as, or only slightly greater. We will be taking practical steps to publicise the availability of such barristers and to give every assistance to those who wish to take up such opportunities.

I next want to deal with business structures. I appreciate this is a complex and sensitive subject. Undoubtedly there will not be a one-size-fits-all solution to the way in which the Bar is structured in the future.

However, it is an absolute necessity that the Bar is provided with the best possible information and analysis about various possible models. To that end, a dedicated team of Bar Council staff is looking into this question urgently. They will produce proposals that will be discussed at Bar Council and more widely. The idea is not to be prescriptive but to give the profession as much information as possible so that they can decide whether any particular model will work for them.

Finally, I want to do everything I can to ensure that England and Wales remains the jurisdiction of choice for those who desire to have international and transnational disputes resolved. In addition, it seems to me to be vital that we have a substantial share of burgeoning markets abroad. To that end, there will be delegations to Brazil and Azerbaijan, amongst others. There is also the Global Legal Summit in February in London in which we are an important part of the partnership.

I am confident that the intellectual resilience, the sheer ability to think our way through changes in the way legal services are offered, which assisted our predecessors as they charted their way through centuries of social and political reform, will stand us in good stead as we move through another period of substantial change.

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