Independent minds

My reasons for wanting to come to the bar today would, I believe, be much the same as they were 50 years ago. They would revolve around the independence that is such a central feature of life at the bar. It was true 50 years ago, and the same is true today.
What I mean by independence is being your own master. Dependent to no one. I mean being totally responsible to yourself, the courts and your clients for the work that you do. Whether you are appearing as an advocate before magistrates or before the House of Lords, you are in charge of your client's case. It is your decision as to how the case is conducted. What you earn depends on what you do. There are no problems deciding how to spend generous bonuses provided by the firm at the end of the year. Your success is almost entirely in your own hands. Success, except in one small area, is not connected to earnings. Connections are not a disadvantage (unless your father is a judge, because the bar does not like patronage), but in the end your success depends on your ability as a barrister. The duty you owe to your client is a personal duty, and so is the duty you owe to the court.
There is, however, an immeasurably more important aspect of the independence of the bar that explains why the bar has chosen its independence as a central theme of its conference. It is an aspect the importance of which I have increasingly appreciated during the 20-plus years that I have been a judge. It is an aspect that is particularly appropriate to focus on at this time, when this country is engaged in a war. If you want to know why you have to go no further than Lord Atkin's celebrated dissenting speech in Liversidge v Anderson. To express it in terms that are perhaps grandiose but are nevertheless true, it is the central role that the independence of the bar plays in our unwritten constitutional framework. It is the role it shares with the judiciary in our adversarial system of upholding the rule of law. It is the role it plays in ensuring that our judiciary is independent.

“Conditional fees are inherently inconsistent with the ordinary way in which a barrister earns his living”

This was well recognised in an excellent lecture given by Stanley Brodie when he was treasurer of the Inner Temple. It was entitled simply 'Independence'. Stanley cited Lord Hailsham, whose words I would happily adopt as my own: “The independence of the judiciary depends more upon the independence and integrity of the legal profession than upon any other single factor.”
He also cited Justice Antonin Scalia of the US Supreme Court, who said: “An inquisitorial system can function with good judges and poor lawyers – an adversarial system cannot.”
Our system, of course, is an adversarial system. The first reason why this is so is obvious in a common law adversarial system. The judiciary depends on the advocates that appear before them in order to do justice. This is why the present Lord Chancellor inserted section 42 into the Access to Justice Act 1999, which provides: “Every person who exercises before any court's right of audience has, (a) a duty to act with independence in the interests of justice.”
The bar would agree with those words. Why was it necessary to have an act of Parliament reciting that? It was appreciated that if one was extending rights of audience beyond the bar, it was necessary to state the fundamental principle of independence. So far, the citations to which I have referred apply to all advocates, but I believe the bar has made a special contribution to the character of our judiciary.
This year is the 300th anniversary of the Act of Settlement. The anniversary has been celebrated around the common-law world because of the contribution the act has made to the independence of the judiciary by establishing security of tenure for judges in this country. This is an essential foundation of the independence of any judiciary. This is now accepted, as I have learnt on recent visits, from Russia to China. It is second nature to a barrister because of the unique way in which they practise law in this country.
The anniversary of the Act of Settlement, as far as I am aware, has not been celebrated in this country, for reasons which have been mentioned by the chairman of the bar. I believe the reason is that in this country, we generally take the independence of the judiciary and the legal profession for granted. This is not surprising after 300 years. But what can be lost sight of is the scale of the contribution which the independence of the bar has made, and continues to make, to the independence of the judiciary.
It is, to my knowledge, accepted in the legal circles of most developed countries that we have an outstanding judiciary. If I am asked to give an explanation for this, I do not refer to the Act of Settlement, I refer to the fact that the majority of our judges are recruited directly from our independent bar. You cannot sever the quality of our judiciary from the quality of the bar. Justice in this country is founded upon an independent judiciary of high quality, recruited primarily from an independent bar of equally high quality. It is reflected in the way that both the judiciary and the bar works. No self-respecting judge, no matter how senior, would let anyone else write his judgment. As with a barrister, what you see is what you get. No one prepares a first draft. That is how we worked at the bar, and that is how we work as judges.
It should not be thought, because of what I have just said, that I am against recruitment to the judiciary from the solicitor side of the profession. On the contrary, I am in favour of this. I am in favour of it because I know that solicitor recruits have enriched the judiciary. They dominate the district judiciary which is one of our success stories of recent times. They have also made a significant contribution to the circuit bench and they are starting to make a similar contribution to the High Court bench.
I would like to see this recruitment extended. But the fact that the members of the judiciary are recruited from both sides of the profession does not alter the fact that, for the foreseeable future, the great majority of the higher judiciary will continue to be recruited from the bar. For the reason indicated by the chairman of the bar, although solicitors have rights of audience, these rights of audience are not in fact being exercised. The fact that they are not being exercised reflects upon the standard of the bar and how competitive it is. The result is that on appointment as a judge, they will start off with the advantage that being independent is already their second nature.
This is the keystone of any worthwhile system of justice. It should never be taken for granted. This is important for the independence of the judiciary. I know of one Commonwealth jurisdiction where if a judge gave an unpopular decision, he was exiled on circuit, and the contempt of court laws were used wholly inappropriately against members of the bar.
The same is true of the independence of the bar. The bar has to be ever vigilant to protect its independence. This includes protecting its independence from an at times overbearing judiciary, or mistaken positions taken by the judiciary as recent history indicates.
One dispute I inherited when I took over from my predecessor Lord Bingham was between the Judges Council and the Bar Council about three strikes and you are out, or the prescribed sentences provisions of Powers of Criminal Courts (Sentencing) Act 2000 (Section 111). The issue was about the duties of counsel to the court if the counsel knew that the prisoner qualified for a prescribed sentence and the court did not. The position firmly taken by myself and the Judges Council was that counsel must inform the court or withdraw from the case, otherwise the court would end up passing a sentence contrary to Parliament's intention. Letters passed back and forth, and eventually David Bean wrote a letter which convinced the membership of the Judges Council that they were wrong and that it would conflict with the bar's duty to its client to have to make disclosure. This was so, even though the consequence would be that the court could pass a sentence which was contrary to the express provisions of an act of Parliament and the sentence would be unlawful.
I refer to this small dispute because, in many jurisdictions, the response of the bar to the position adopted by the most senior judiciary could be very different. I cite this example because it reflects well on the Bar Council. It illustrates how fragile a thing independence can be when one is doing what is right for your clients, notwithstanding the controversy of the point of view.
The changes that have taken place in the bar since I commenced practice are staggering. To name but a few of the changes which have taken place: the control by the circuits over rights of audience has gone; there is the abolition of the two-counsel rule; and there was the surrender of the monopoly of rights of audience before the higher courts.
The bar's willingness to embrace change has been quite remarkable. I congratulate the bar on managing and responding to change. There were always some faint-hearted members who, in relation to each change, felt that the bar would not survive as a separate profession. But the bar has confounded the prophets of doom. Instead of withering away it has grown stronger.
When I started at the bar there were less than 2,000 members. Today, the membership has increased more than six-fold. Earnings are increasing at a modest rate. For a minority of members of the bar, even allowing for inflation, earnings are breathtakingly high.
There is, however, another side of the picture – the majority of barristers who are competent and hard working but dependent on publicly-funded work, whose earnings are disturbingly modest. I understand they must feel battered. Their difficulties need to be acknowledged and dealt with. I think it is important that the Bar Council achieves a rectification of that situation.
Today, the bar is faced with more change and more challenges. The bar has accommodated the replacement of legal aid by conditional fees. Conditional fees are inherently inconsistent with the ordinary way in which a barrister earns his living.
It is also adjusting to the fact that members of the Crown Prosecution Service are to have extended rights of audience.
The bar is also going to have to cope with the introduction of the Public Defence Service. I recognise that it creates problems for the criminal bar, which is already vulnerable and tends to undervalue itself. But the Public Defence Service has a critical role to play in the criminal justice system, which is not always recognised. I had the opportunity of addressing the Criminal Bar Association earlier this week and, based on the questioning I faced, the energy and vitality of the criminal bar is clearly as strong as ever. I am confident that the criminal bar is resilient and will survive these changes with its independence intact. We must, however, be careful to acknowledge its very real needs.
I must confess that I am concerned about the Office of Fair Trading (OFT) Report. The bar was absolutely right to treat the report seriously. I regard the Kentridge consultation paper as being an extremely impressive document. Sir Sidney Kentridge QC knows about the importance of an independent bar and an independent judiciary. I believe his consultation paper effectively counters each of the points of concern advanced by the report. However, I would want to stress the scale of the importance of the bar's case based on the public interest. I believe that partnership is inconsistent with the independence of the bar and is against the public interest.
The changes canvassed could seriously damage the significant contribution that the bar makes to the quality of the judiciary. That contribution is not confined to this country. As the source of the common law system, within the common law family many jurisdictions have looked to this country for leadership. The development of our case law is dependent upon the quality of the argument which is presented to our higher courts. We are dependent upon the bar's traditional role of acting as our sounding board. The proportion of complex cases coming before the courts is growing all the time. We need the expertise of specialist counsel, a specialist bar.
I can understand why the OFT makes the points that it does in its report. Unless you have been at the bar, and I would add as a senior judge, it is difficult to understand why the continued existence of the bar as a separate profession is so important to the administration of justice. In the past, the bar was subject to restrictive practices which could not be objectively justified. But through the years, its leaders have wisely tackled those unjustifiable practices. Today, it is highly competitive, and I know sitting in the courts as I do, and having barristers appear before me daily, the quality of its advocacy is of the highest order.
Although the Human Rights Act has only been part of our domestic law for the past 12 months, when I asked a group of judges from Strasbourg who were the best advocates that appeared before them, they had no hesitation in identifying the bar of this country, although none of them came from this jurisdiction. It is because of this quality, at least in part, that we have been able to incorporate the European Convention so successfully into our domestic law.
Just as I believe the traditions of our judiciary are an important part of our heritage, so are the traditions of the bar. We must protect both of those traditions. They are dependent upon each other. Not because of the bar's personal interests, but because of the public interest, we should hesitate long before we threaten those traditions.
But we must not be inward looking. We must embrace the changes taking place. It is for that reason that I consider the bar was ill-advised in not agreeing that solicitors who have higher rights of audience should be able to become members of the Inns of Courts. The bar should not repeat the same mistake in relation to advocates of the Crown Prosecution Service and the Public Defender Service. The bar should be at the forefront of finding ways in which (so far as this is possible) members of both services can be encouraged to adopt the culture of independence and responsibility of the bar.
The sort of step I have in mind is the establishment of a scheme to enable members of the two services to spend time in chambers and obtain at least the flavour of independent practice. One of the reasons I am pleased about the steps the chairman of the bar referred to, in relation to pupillage and recruitment, is that we need more barristers in those two services, and also the Government Legal Service.
This would be another example of the bar performing extra mural public services. As a former member of the bar I take pride in acknowledging the excellent pro bono work that it performs in this country and overseas. I say 'pro bono' – what I really mean is 'unpaid'. This is both in relation to litigation and training. This work abroad is especially important in these times when we have to avoid the world being divided into two camps. For the Third World the establishment of an independent justice system, including an independent legal profession, can make a critical contribution to their economic development and the protection of human rights, which is difficult to estimate. By its unpaid work overseas, the bar is helping to make a real difference.
On that higher note I can say that I remain confident in the future of our independent bar. It will survive and prosper because of the sheer quality of its culture and its members, who, by their attendance here today, demonstrate their commitment to the future of the bar.