'We're not just sipping Claret'
29 August 1995
Running the Bar Council in 1995 has been like running the country - big ideas on marketing, modernising and foreign policy, and those on the home front still complain.
Rank and file barristers continue to express fears over their future in the face of competition and concern that the council appears not to be heeding their plight.
This is happening at a time when the profession's leaders at the Bar Council are generating a higher-than-ever rate of positive initiatives aimed at benefiting the Bar and its clients in the long term.
Those initiatives, covering the broad areas of training, professional conduct and practice, and the Bar's relationship with solicitors and the public, are now well under way just 12 months after the Bar's standards review body report which proposed them.
A spokesman said: "The pace of change is accelerating remarkably, and we are moving into a different stage now where the Bar Council is creating an environment where barristers can compete more effectively."
He added: "We are not down El Vino's sipping Claret. We are making moves to work out what the game plan is and in no sense have we been caught napping by the pace of change."
The Bar's future is being forged now, but the final result will depend on how well it is able to adapt and respond to, or even resist, external market forces while keeping up with the accelerating pace of change around it.
It will also depend on how accident-prone its initiatives will be. No sooner have some ideas been put in motion than they are upstaged. There has been criticism of Goldsmith's proposal for a six-month delay in calling to the Bar, fuelling fears of racial discrimination; competition - chambers setting up the Compas pupillage clearing house; politics - Labour's plans for full direct access, as opposed to Goldsmith's proposed direct access on non-contentious matters; and the Bar's own members expressing a general wish to practise like solicitors in order to be more competitive.
A brief resume of the year so far reveals a zest for reform. Bar Council chair Peter Goldsmith QC set this year's agenda last December, when as chair-elect he announced a significant package of reforms. These largely stem from the report in September last year of the Bar's standards review body under Lord Alexander, which was described in The Lawyer as "the most radical step for the Bar since the Courts and Legal Services Act".
Goldsmith wrote in The Lawyer on 3 January: "I want 1995 to be the year in which the Bar takes concrete steps to establish its reputation as a robust and competitive professional service." Goldsmith said he wanted to build on the Bar's "integrity, professionalism and excellence" with reforms in education, training and working practices in order to "lead to a truly efficient and competitive service, meeting the need of the modern client".
The cornerstones of Goldsmith's reforms are to include a pupillage clearing house system, a "speedy and affordable" complaints procedure, management training for chambers, increasing the numbers of colleges teaching the Bar's vocational course and a "new partnership with solicitors, working together in the client's interest".
The "new partnership" would at the same time involve the continuing struggle for a 'level playing field' regarding competition between the two branches of the profession - probably the key to the fears of most practising barristers outside the top echelon of London silks. The issues include matters such as calling for parity of pay between solicitors and barristers in Crown Court cases, and suspicions of advocacy
referral 'kick-backs' between solicitors.
The Bar Council's reforms appear to be on track for success. In May it unveiled the Pupillage Applications Clearing House (Pach), its university-style system for processing pupillage applications to chambers. With its development overseen by Michael Beloff QC, Pach is a voluntary system aiming to remove uncertainty from the selection process. It will work in tandem with the Compas scheme set up by a group of more than a dozen chambers in March.
A new independent complaints mechanism was also announced in May. Scheduled to be up and running by 1997, it introduces the radical concepts of a lay complaints commissioner and fines in the form of compensation of up to £2,000 where barristers give a poor service to clients.
A timely revision of the Bar's equality code is also on its way, incorporating a new chapter on sexual harassment and code of fair pupil selection.
Both issues were in the news this summer following survey findings in which 40 per cent of women barristers claimed to have experienced sexual harassment and 70 per cent to have experienced discrimination. The new code is expected to have a major impact.
Plans to end the Inns of Court School of Law's monopoly on vocational training in 1997 are also falling into place.
And most recently, the Bar Council is busy promoting both itself and the UK legal profession on the world stage with Goldsmith embarking on a tour of major international conferences in the US, China, Canada and Hong Kong.
The Bar Council has also been sufficiently fleet of foot to react to incidental issues along the way. Following a rise in the numbers of attacks by barristers on colleagues' behaviour in court, particularly in appeals, Bar Council deputy chair David Penry-Davey QC is understood to be drafting a practice direction to keep rowdy counsel in order.
As with all the Bar's reforms, Goldsmith has wisely noted that he is keen to learn from the problems encountered by the solicitors' profession.
Yet the Bar Council's determination to stick to its stated course of evolution into a smaller, specialist referral profession is sometimes seen as being at the expense of its members' views.
Complaints from members at the AGM in June gave the impression of two tribes at the Bar - the small, successful elite in control at the steering wheel of the Bar's charabanc, and a disaffected populous on the back seat wanting to get off at the next stop.
The Bar's establishment has so far been able to quash a series of radical calls for change, including full direct public access and partnerships between barristers and with solicitors with proposals that the putative 'solicitor-barristers' be governed by Bar rules for court work and by the Law Society rules for non-court work.
Such 'revolutionary' moves have been condemned as "fusionist", "retrograde" and, as Goldsmith said, were also conceivably "damaging, dangerous and defeatist".
Calls for barristers employed in solicitors' firms to be allowed to retain their title and not be required to disbar were also opposed.
But the actions of determined employed barristers wishing to remain barristers have led the Bar Council to take counsel's opinion on the matter.
The outcome of this issue could be explosive when it is delivered in a few weeks' time, as some barristers expect the Bar Council has no legal power to demand disbarment.
One AGM resolution attacked the Bar Council for a lack of democracy and being "electorially distant" from its flock.
The influential Robin De Wilde QC called this "a timely shot across the bows".
To its credit, the Bar Council set up a working party under treasurer Michael Blair to examine these issues.
Former Bar chair Tony Scrivener QC, who set a more radical path for the Bar from which it has rarely turned, is relaxed about the progress his profession is making and praises Goldsmith as an "outstanding chairman".
De Wilde, Scrivener and Gareth (now Lord) Williams QC who succeeded Scrivener as Bar chair, are all members of Slate, the radical group which fought stagnation at the Bar in the mid-1980s in order to begin a process of reform that still continues today.
Worried barristers may gain some peace of mind that old Slate members, who are now 20-something strong still quietly meet. They may yet arise to prevent disaster.
"We are watching things very closely," said Scrivener.
"If we felt the Bar Council was not looking after the members of the Bar, or the public interest, I think we would revive Slate pretty quickly."
Specialise to Survive
No one would suggest the local GP should conduct surgery or be expected to diagnose every disease. What the GP does is recognise when specialist help is needed and know where to go it.
It is no coincidence that the legal profession divides itself in a similar way. Most solicitors operate in practices of less than five partners. It is not always possible for such law firms to offer comprehensive specialists in-house, and so have an available resource which can be drawn upon to provide essential support and advice.
Solicitors will always be reluctant to refer clients to other more specialist firms of solicitors with the feared consequence for them of loss of fees and possibly the client.
In any event, with the overheads of a solicitor's practice being up to 80 per cent of income, compared with the private barrister at about 25 per cent, the use of a specialist Bar enables all firms to offer a comprehensive legal service at an economic price.
It follows that there will always be a demand for specialist practitioners who will flourish and make an essential contribution to the quality of legal services provided by the whole profession.
One example of this is in the area of financial crime with its ancillary confiscation powers under the Drug Trafficking Act 1994 and Criminal Justice Act 1988 (as amended by the Proceeds of Crime Act 1995).
Practitioners simply do not have the time to deal with the ancillary civil powers of restraint and disclosure of assets, the interests of third parties, the role of court appointed receivers and contempt.
This hybrid area of the law with all its international implications requires specialist knowledge which can only be acquired through regular practice. As the High Court powers are exercisable in chambers, no rule prevents solicitors handling the entire case.
However, it is arguable that no firm of solicitors can or does generate enough cases to provide even one individual employed by it with the necessary skills to conduct litigation in this fast developing and changing field (there have been six separate Acts of Parliament dealing with this area of the law in the last nine years).
In common with other specialised barristers, and, in an effort to ensure that we can compete with solicitors and the changing world of rights of audience, we reached the conclusion that to specialise was to survive.
Andrew Mitchell is a barrister practising at 171 Fleet Street.