The Bar's defining decade
6 October 1997
Although 1987 still has the ring of recent history, in the 10 years since, barristers have seen an unprecedented growth in their profession, and what will surely prove to be an enduring reappraisal of the role of the Bar.
The rate of growth of the profession has been remarkable. In October 1987 there were 5,642 barristers in independent practice. By October 1996 there were 8,935. Year by year pessimistic observers have predicted that further growth will be unsustainable, yet demand has remained strong. However, a recent analysis of the numbers of pupillages and of new tenancies in the past eight years suggests numbers have peaked.
There are now some 535 sets of Chambers in England and Wales - 251 outside London - reflecting the fact that one of the key strengths of the Bar is the service it now provides to many thousands of solicitors across the length and breadth of the country. The Bar is most emphatically no longer a London-only affair.
Further, access to the Bar has widened. While it remains a referral profession, there are now a large number of other professions, such as accountants, surveyors and engineers, whose members can use the services of the Bar without the intervention of a solicitor, and who do so with increasing frequency. The same applies to overseas practitioners, and, at present, the Bar is working on proposals for direct access from Citizens Advice Bureaux and other advice agencies.
The profession is also being transformed by a steady influx of women practitioners. In October 1987, there were just 788 women at the Bar. By autumn 1996 this figure had nearly trebled to 2,115, representing almost 25 per cent of the practising Bar - for new entrants, the male to female ratio is 60/40. But it is disappointing, although perhaps understandable given the age profile of women at the Bar, to note that the figure of 22 women QCs in 1987 has only increased to 60 today, out of a total of 925.
Equality of opportunity has been a key issue for the Bar in recent years. Admission to the profession, and advancement within it, must be on merit, and on merit alone. The highest standards have been set with the comprehensive Equality Code adopted by the Bar Council last year, so as to put an end to discrimination in all its forms.
The decade has seen the playing out of the major public debate on the provision of legal services and on the structure of the profession itself. The Marre Committee concluded as early as 1988 that a fused profession would not be in the public interest. But 1989 saw the appearance of Green Papers on rights of audience, fusion, multidisciplinary partnerships and a range of other related issues.
The debate culminated in the Courts and Legal Services Act 1990, ending the Bar's monopoly of rights of audience in the higher courts. Many had thought that it would spell the end for the Bar, indeed some thought it would be the end of civilisation as we knew it. Happily that has not been the case, as the growth in the Bar and in the demand for its services has amply demonstrated. But the debate triggered off an intensive review of the way the Bar operated, which resulted in many of the old restrictive practices being swept away.
In the early 1990s, fusion was the topical issue. This is no longer the case. There now seems little chance of fusion happening and the majority of the profession do not want it. An independent Bar made up of specialists operating with very low overheads is - and will remain - an essential resource by which solicitors can provide a cost-effective service of the highest quality for their clients. The Bar is confident of its ability to compete with solicitors in the market for advocacy services. There are solicitor advocates of the highest quality, but advocacy is a speciality. It is best done by those specifically trained for it and whose practices are devoted to it. There is a growing trend for qualified solicitors to transfer to the Bar, if they wish to practise as full-time advocates.
The Bar is, and must remain a self-regulating profession. But it has long recognised the importance of a lay element in its disciplinary committees. It has now strengthened this element with the appointment of a lay Complaints Commissioner to oversee the handling of complaints by clients.
Until last year, the Bar had been concerned solely with the disciplinary implications of a complaint. Now it has been recognised that the public expects more. The person who has received a substandard service is entitled to have his or her complaint investigated fully, fairly and swiftly, and, where appropriate, to be given redress, whether by explanation and apology, repayment or reduction of fee, or, in certain circumstances, compensation payments. A complaints mechanism has now been put in place to deal with client problems more efficiently.
The past 10 years have also seen a dramatic improvement in the arrangements for education and training for the Bar. The old Bar Finals examination was replaced by the Bar Vocational Course (BVC) which is skills based, and has already been shown by independent research to be well-matched to the needs of the young practitioner.
Second, the monopoly of the Inns of Court School of Law has come to an end. As from October 1997, the BVC will be available in a number of institutions, some outside London. In certain cases, it will be taught alongside the Legal Practice Course - and it will be interesting to see to what extent there is an overlap between the two.
There have also been major changes with regard to pupillage. The vast majority of chambers now provide funding for their pupils, which is of vital importance if the Bar is to be a career open to all, whatever their background or means. Further, steps have been taken to ensure that pupillage is of uniform quality.
Another important development has been the introduction of increasingly sophisticated techniques of advocacy training by the Inns of Court and Circuits for their young members.
Finally, the Bar has now embraced compulsory continuing education for young practitioners. There can be no doubt that future entrants to the profession will be far better trained than ever before.
Information technology has already begun to transform the manner in which the Bar operates. It is likely that one of the critical issues for the legal profession at large over the next decade will be the way in which IT will change the nature of the services that lawyers provide. Professor Richard Susskind, in his stimulating and influential book The Future of Law, poses the questions that we will all have to address.
What then of our legal system? Public confidence in both the criminal and civil systems is at a low ebb. So far as the criminal system is concerned, it has been undermined by notorious miscarriages of justice, and by the lamentable reversals of penal policy on the part of the last government.
It will take time to restore public confidence and the first step must surely be to re-establish a broad consensus on sentencing and sentencing policy. This can only be achieved by proper consultation with all parts of the criminal justice system before legislation.
The open conflict between the Government and the judiciary in recent years has been highly damaging to our political and legal institutions. It must not be allowed to continue. As for the civil justice system, the erosion of confidence is attributable to what have rightly been described as the twin evils of cost and delay.
The Bar has consistently supported the Woolf proposals for reform. Indeed, the Heilbron/Hodge report was the forerunner of much of what Woolf has advocated. But the Bar has also argued that their success will depend upon the adequacy of the financial resources available for their implementation.
Legal Aid is the final issue to be addressed. I welcome the Lord Chancellor's commitment to a review of its operation to be carried out in conjunction with his proposed cost/benefit review of Woolf. I believe that the next ten years present a unique opportunity to fashion a system of legal aid that meets the needs of the citizen, and expands access to justice while being predictable in its impact on the public purse.
The past decade has been a time of rapid, major and very necessary internal change for the Bar. It can now look to the future with confidence and optimism. The time for introspection is past. The Bar's important challenge for the next 10 years is to help in re-establishing the confidence of the country in its judicial institutions.