New Bar for the new millennium
21 July 1998
The Bar will deal with the Government's proposals with confidence and its fundamental role in the legal system will continue. Dan Brennan QC says the Bar is determined to prove it can pick up the reform gauntlet thrown down by the government. Dan Brennan QC is vice-chairman of the Bar Council.
The Government is set on a radical agenda of change in the provision of legal services - and how they are paid for. The Bar is ready to meet such change.
Barristers are skilled in giving advice and, above all, acting as advocates. Our democratic society is based on the rule of law and such a society needs skilled advocates. The Bar will continue to meet that need and it will do so by ensuring that barristers provide a good-quality service at a reasonable cost.
The Bar will deal with the Government's proposals with confidence and its fundamental role in the legal system will continue. It does not fear the competition that will come about as the result of the planned extension to solicitors of rights of audience in the higher courts. Indeed, the Bar welcomes this move.
However, an advocate should have rights of audience only if competent to exercise them. That means they should have the ability to match the standards required at each level of the court system. Advocates require additional training, experience and appropriate qualifications. It is essential to maintain and, indeed, improve standards of advocacy.
To equate a requirement of quality with a restrictive practice is to put a premium on mediocrity. For barristers, advocacy training is central to continuing professional development, and so it should be for solicitors.
Examinations for solicitors' higher court qualification led to 116 out of 232 candidates failing between 1994 and 1996. Professor Scott, the independent training adviser, thought the examinations a fair test on matters that advocates going into the higher courts ought to know.
Rights of audience must be staged according to training, qualifications and the different levels of courts. Otherwise the public will get poor representation; the courts will be log-jammed because of incompetence; and the legal system will fall into disrepute.
Any citizen attending a court will recognise who is the good advocate. The skills of cross-examination, analysis of evidence and the law, and the art of persuasion do not come off the shelf or at a cut price. They are the result of training and experience.
Good advocates give good value for money. Any new system must ensure such skills in advocacy continue to be the benchmark and the entitlement of every litigant.
The Government intends to control legal aid expenditure, something in which the Bar is playing its part. More than 90 per cent of all criminal cases are now dealt with by way of graduated advocacy fees. The Bar was instrumental in creating this scheme, which started in January 1997.
It is also about to conclude the setting up of a graduated fee system in family work and intends to provide such a scheme for the rest of civil legal aid work by the end of the year. All these schemes will allow costs to be predicted and will eventually lead to better budgetary control.
A Bar/Lord Chancellor's Department (LCD) working party on high-cost criminal cases is at a detailed stage.
In the private sector the Bar has recently changed its rules to allow speculative fee arrangements following the Thai Trading decision.
In January and April the Bar published major responses to the Government's conditional fee and legal aid proposals. It commissioned a report from City firm Biddle on the effect these proposals would have on the structure of the Bar. Published in April, the report explains that such changes will be radical and far reaching.
The Bar has taken independent actuarial advice on risk and uplift assessment in conditional fee work which shows lawyers' present approach to be inefficient and "unbusinesslike". Conditional fee agreements (CFAs) can carry major risk and the uplifts will be high.
Clients' experience of CFAs must be monitored. To this end, the Bar is producing professional conduct guidelines to protect the consumer.
Last week the Bar Council published its own radical proposals, in this case to reform the legal aid merits test. It rejects a 75 per cent threshold and recommends a variable test according to the nature of the claim. There should be staging so that legal aid only continues if the case merits it.
The Bar also proposes root-and-branch reform of the requirements for lawyers giving advice and the way in which they give the advice, and how the Legal Aid Board assesses that advice before legal aid is granted. It is proposed that those giving persistently over-optimistic advice should be subject to sanctions. The paper includes draft legislation and a proposed protocol for legal aid advice.
The Bar took the initiative in setting up the Benson working party on a contingency legal aid fund, legal expenses insurance and private sector funding of litigation. it has sent proposals on extending legal expenses insurance in personal injury cases to the LCD, the Department of Trade and Industry and the Treasury.
The Bar Council's committee structures have been changed. This means that practice management and development, information technology and organisation of legal services will be at the top of the Bar's agenda in the coming years. It has also extended specialist representation to reflect the Bar's increasing specialisation.
Overall, the Bar's response to change can be seen to have been reasoned, well-organised and in the public interest.
The Bar will fight to continue as an independent referral profession of sole practitioners. If it has to change its professional structure, it will - but not at the cost of its independence and integrity. Barristers are not merely the purveyors of a commodity. As independent lawyer/advocates, they perform a crucial role in the system of justice. They fight for the citizen against the state and the strong. They represent any client or cause no matter how unpopular. They are relied on by the courts because they are independent.
Today, as in the past, Thomas Erskine's declaration when defending Thomas Paine holds good: "I will ever and at all hazards assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution can have no existence."