Last year the Lord Chancellor introduced the Access to Justice Bill, saying it "would remove unnecessary restrictions…which prevent employed barristers and most solicitors from appearing in the higher courts". Lord Mackay said much the same in 1990.
Both sets of proposals were vigorously opposed by the Bar Council, anxious to protect the interests of barristers in private practice. And the "bar wars" followed.
The Lord Chancellor's Advisory Committee was given the task of implementing the 1990 proposals but its work was never completed. Its last chairman, Lord Justice Potter, excusing this, said: "The bar wars and allied struggles over rights of audience…dominated the committee."
For the short-sighted it has appeared to be in the interests of the bar to preserve as much as possible of its former monopoly. It is argued that only barristers have the expertise to provide the best service. Only they are independent, hence reliable.
The Access to Justice Act is now enacted and insists otherwise, enabling the client to have a choice regardless of the act restrictions presently imposed by the Bar Council.
The Employed Barristers (Higher Court) Rules effectively prevent most employed barristers from exercising their new statutory rights. The Bar Association for Commerce Finance and Industry (BACFI), representing employed and "non-practising" barristers, estimates that no more than 5 per cent could comply.
Present restrictions also ignore Lord Denning's view of employed barristers: "They are regarded by the law in every respect in the same position as those who practice in their own account…they must uphold the same standards of honour and etiquette, they are subject to the same duties…they have the same privileges."
All barristers have the same qualifications when they are called to the bar. Following pupillage, some go into private practice, others get a job.
The former, from chambers, may immediately appear in any court for any client. The latter must still satisfy the Bar Council that they have "completed three years in independent practice" and "have suitable advocacy experience".
But no one explains how they are to get it. Worse, they must be employed in a legal department of at least three lawyers, but in-house legal departments are usually small.
Also, few employers would be happy to undertake in writing to the Bar Council, that "he acknowledges that the barrister's duty to comply with (their) code overrides any duties…to the employer".
No decent employer would order his lawyer to disobey the code, but to have to undertake not to is insulting. These are only two out of 16 similar restrictions which are mostly unnecessary and several difficult or impossible to perform. They are, at last, under review, which hopefully will alleviate the present position.
Unreasonable restrictions on employed barristers are only a symptom of the previous attitude that they are inferior – of well over a thousand benchers of the four Inns of Court just three are employed barristers. 2530 subscribing employed barristers and 3046 non-practising are represented by just 12 on the Bar Council. In contrast 9762 in private practice have nearly five times as many.
But at last a fairer deal may be reached. A working party has been set up under Lord Alexander to consider fairer representation on the council with interim measures to redress the balance.
However, the present position caused the Lord Chancellor to write: "One of the current problems with the Bar Council is that it is insufficiently representative of employed barristers. This is true not simply in terms of numbers sitting as members of the council, but in terms of the Bar Council's attitude to those of its members who are employed. In my view the Bar Council too often sees its task as being simply to defend the interests of barristers in private practice, and it does not show the same vigour in promoting the interests of its employed members. I have been dismayed by the belief in the inherent lack of integrity of the employed bar."
Derek Wheatley QC is chairman of BACFI and a former chief legal adviser at Lloyds Bank.