The bar's black sheep?
15 October 2001
Ask any number of barristers to describe the Bar Council's functions and most would probably be able to give you a reasonable answer. With the volume of council material that lands on their doormats it is hardly unlikely. But ask them how often during professional practice they have employed the council's services and quite a few would humbly respond, "hardly ever".
Although there is criticism of the council, the above is probably not the result of it not doing its job properly, more that the very essence of being a barrister is a love of self-sufficiency. Council chairman Roy Amlot QC is particularly aware of this disinterest. "Quite a large chunk of the bar let the council get on with it and only moan when they think their interests are being affected in some way," he says.
One young silk, while recognising the importance of having a representative body, says: "The bar is full of independently-minded people - we're not very trade union-like. We have elections once a year but I rarely get involved as I don't know what the people do."
This seems to be a fairly representative view, particularly among younger members of the bar. Laurence Rabinowitz of One Essex Court, for example, confesses that he does not have a view on the bar council and has only once had an encounter with it, to do with subscription.
Paradoxically, barristers want the council to represent rank-and-file opinion more efficiently. Although the council is earnest when it comes to issuing information to barristers about its activities, it is often accused of not listening enough to the general bar electorate. Anthony Speaight QC of 4 Pump Court says: "Very few on the Bar Council actually see themselves as constituent representatives of a group of barristers, and that's a pity."
Some believe that the bar reached a high watermark in representing its profession during and in the aftermath of the Campaign for the Bar, otherwise known as the Slate.
It was born in 1987 out of worries from senior barristers that the Bar Council was not representing barristers' feelings on certain issues, particularly legal aid and prosecution fees, and was generally out of touch. Slate members put themselves forward at elections with considerable success. Slate member Anthony Scrivener QC, for instance, became bar chairman. In its seven years of life, those in favour of its ambitions say it changed the council irrevocably and for the better.
One silk says: "Everyone would agree that the Bar Council was changed by this influx of more lively and more dynamic people. I'd venture to say that if something similar had happened to the Law Society in the 1980s, it wouldn't be in the state it is today."
Some say that standards of representation have dropped since the end of Slate. But Amlot slams this criticism. "The Bar Council could not be more representative of the independent and employed bar," he states.
Amlot has good cause for such remarks. Two years ago, Lord Alexander of Weedon, now joint head of chambers at 3-4 South Square, looked at improving representation. As a result of the election of 115 members it became dramatically more democratic. Most members are elected by the bar as a whole, and the remainder are drawn from the various bar associations. The employed bar also has about 20 members, reflecting the fact that it makes up 4,000 of the 14,000 barristers in England and Wales. In the spirit of a united bar, the Inns have been urged to choose an employed barrister from their members to become one of the three currently on the Council.
Despite this significant step towards greater representation, some barristers, including some at the senior end, would like to get rid of the policy of the vice-chairman becoming chair automatically.
Amlot says there is an easy solution - simply stand against anyone who stands for chair. "There's nothing to prevent anyone from doing so if they want to," he says. So watch out David Bean QC, the current vice-chair due to assume Amlot's seat at Christmas.
But to challenge Bean would mean a break with tradition, and tradition at the bar is sacrosanct, but things seem to be moving in a brighter direction in that respect. Members of the employed bar have traditionally been viewed as inferior mortals by their independent peers, with many of the employed bar claiming that events such as Inn dinners are tortuous affairs, with senior barristers ignoring them once they find out that they work in-house.
This is changing with the council's 'one bar' proclamation. Indeed, when The Lawyer reported that the North-East circuit had proposed to introduce a ban on employed barristers entering its membership, the council threatened to expel the circuit from its membership.
However, significant elements of the employed bar regard the council as paying lip service to reform while failing to put them on an equal footing with the independent bar. In particular, the employed bar views the council's consolidated regulations as unfair. Introduced last year, the regulations ban non-practising barristers from being able to call themselves barristers, and rule that employed barristers cannot advise their employers' clients. The bar regards these changes as getting rid of unsuitables. Other council reforms are aimed at improving training and competence among employed barristers.
But while the council may be good at listening, how much good does it really do in the name of stamping out discrimination and inequality? Expenditure on equal opportunities is ranked an impressive eighth in the council's budget. Hodge Malek QC of 4-5 Gray's Inn Square, while saying that the race relations part of the bar is one of its most active areas and that the council encourages ethnic groups to apply for silk and the bench, says that they are still very under-represented. "The lack of ethnic minorities with silk is very discouraging," he says.
Last week, The Lawyer reported an addition to the council's constitution, banning age discrimination against pupil and tenant applicants. But it did still include the Commercial Bar Association's suggestion that the ban should be conditional on decisions being carried out objectively.
The final move worth pondering came last week, when the Council of the Inns of Court discussed a report by Lord Justice Thorpe into equality. One idea was the introduction of crèches into the Inns, which a bar spokesman, with tongue in cheek, suggested would not be top of the judges' agendas. (Full marks for effort though.)
It is not uncommon to hear barristers argue that if one accuses the council of not moving forward with the times, one must consider the fact that the Inns own the buildings in which barristers work, socialise and meet for formal occasions. Thus, any change proposed by the council leads potentially to conflict with the Inns.
Amlot says: "The Inns are in a powerful position because of what they own, and because they have as their benchers the senior members of the judiciary. There have been times when we've not worked well together, but now we are touch wood." He points to common objectives such as education, advocacy training and bar vocational courses, among others.
But some argue that the council is still not doing enough to move with the times; for example, a new Sports Law Bar Association was rejected recently. Amlot says that the application was weighed against certain size and status criteria and declined.
Also, some say that the council should let anyone refer work direct to the bar. David Platt, a personal injury barrister at Crown Office Chambers, says: "I don't see why direct access from the public shouldn't happen and I'm sure that ultimately a merger with solicitors firms will happen." Amlot, while concerned about the status of certain groups that apply for direct access to the bar, says that the number of licences is already large and is growing.
Despite such general criticisms, the council has won praise on three specific fronts: fighting the cuts to fees for criminal and family lawyers; handling the everyday requests by counsel for advice on ethical and procedural issues; and it is considered that its investigations are carried out soundly and fairly.
However, as many barristers consider that even voting in council elections is constituting a little too much contact with the council, all this may mean very little. The impact of the Office of Fair Trading report in particular means potentially massive changes to the bar's structure, and certainly competition is likely to increase dramatically, making it much harder for barristers not to take at least a passing interest in the work of the council. The question is, has the Bar Council learnt its lessons well enough to be able to deal with the storms ahead?
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