Fear not, the road to change is safe

The independent bar in New Zealand is thriving – proof that chambers there will survive, argues Andrew Ayres.

The future of the Bar has never been more uncertain than now.

The Lord Chancellor, Lord Irvine has promised to make inroads into the Bar's monopoly on rights of audience in the higher courts, and the joint education of solicitors and barristers is being mooted.

The vision of a fused profession is no longer unthinkable and has many at the Bar crying out in horror at the prospect.

But the key issue, which many have not addressed, is does the independent Bar really need to be afraid of a fused profession?

The experience of New Zealand suggests not.

New Zealand is a common law jurisdiction with a fused profession, but also with an independent Bar.

Lord Irvine visited the country in the summer to examine its Official Information Act and the recent Privacy Act.

But you suspect that he also took a good look at the legal profession, which has many features common to its English counterpart: there are barristers and solicitors, small and large firms of lawyers in partnership, and also a separate bar made up of independent barristers practising as "sole traders".

Substantive law shares common features, too. New Zealand is one the few jurisdictions to retain a right of appeal to the Privy Council in London. As a consequence, the power of English House of Lords authority is potent in the New Zealand High Court and Court of Appeal.

While Lord Irvine was visiting New Zealand, I was working there too, courtesy of the Inner Temple and the Pegasus Scholarship Trust.

It felt somewhat odd when I appeared as a junior in the Wellington High Court and the judge said: "I am happy to follow the authority of the House of Lords in Crest Homes plc v Marks [1987] AC 829."

I had flown half way round the world to a separate and independent state, yet felt that I had never left the Royal Courts of Justice. But the similarities need to be set against the differences. The whole profession (both barristers and solicitors) numbers about 6,500, far fewer than the numbers of the English Bar alone.

Everyone who becomes a lawyer in New Zealand qualifies as both a barrister and solicitor. There is no issue as to rights of audience, as every lawyer has the standing to be heard in every court.

But this "fused" status has not prevented the development of an "independent bar" made up of independent practitioners. In New Zealand there are many sets of chambers similar to the English model.

Indeed, in the past 15 years, there has been a great increase in the number of practitioners at the independent bar, although, while a few sets have 30 or more "barristers sole", most have fewer than five.

At present, the independent bar numbers about 400, with about 50 QCs.

But there is not really any such thing as a junior bar. Most of those joining the independent bar have already been in partnership and tend to be in their late 30s or 40s.

So barristers sole do not need to be "marketed" to the same extent as a junior barrister in England in his or her first year of practice.

There are no clerks operating at the New Zealand bar, as the barristers arrange their own work, fees and billing.

The lesson is that there will always be a place for providers of specialist advocacy and specialist advisory services outside (as well as within) the context of law firms.

Those at the independent bar have nothing to fear from competition. Whatever the Lord Chancellor may have in store for the Bar, it will never be destroyed by an extension of rights of audience or fusion of the professions.