21 July 2018

Future of the Bar

 

 

THE ROLE OF REGULATION IN THE FUTURE OF THE BAR

 

The Bar will have a future if it has an identity.  That is implicit in the title of this meeting.  And the Bar can only have an identity if it is so regulated that all those who practise its profession are within the regulated area.  So whatever the BSB regulates will define and protect that identity.  The Bar is that which is regulated as such.  In some ways I wish it were otherwise, but no profession today can go on without regulation, such is the power of the state and its concern for citizens/consumers.  Parliament has enacted the laws that control regulation and has thereby handed the identity of the legal profession to the regulator. The LSA 2007 permits all sorts of structures for practising law but only the regulator can open them up to the Bar.

 

Unfortunately, unlike privately funded professions such as dentistry or architecture, the continued existence of at least a sector of the Bar - but not all of it - depends on state funding and largesse.  No legal aid, almost no criminal Bar. Likewise these are hard times for family lawyers. A real difficulty relating to the public image of the Bar at the moment is the impression, right or wrong, that many at the top end are earning huge sums from legal aid and from private practice; that it is unaffordable and out of reach of most people.  This has to be addressed by the Bar, because it is that image which drives the projects of the LSB and the MoJ.

 

What of the future of the Inns?  It is instructive to consider the great livery companies, whose beautiful buildings are adjacent to the Inns and resemble them physically and organisationally.  Historically they had the same function as the Inns.  Collegiality, education, training, admission, discipline, professional ethos and protectionism for their members, strength in defending their interests against the government of the day.

 

 Look at what happened to the livery companies. They are said to have gone into decline as professional organisations when other tradesmen began to practise outside London, undercutting those who were controlled by City laws and by the regulations of the livery companies.  The City had opportunities to govern those extramural practitioners but took the pivotal decision not to be generally responsible for them. Another cause of the decline of the livery companies, according to history, is the constant extortion from them of money by the monarchs; rental income was static for a long while; there was social upheaval; the rise of the professional and middle classes, and assaults on the livery companies' wealth and privileges.  They did revive in the 19th century, as flagbearers for their trades, but without the hold on them that they once had, and with a shift to major emphasis on charity and support, rather than regulation.  They still have their beautiful old buildings, except where bombed, they even have quite considerable endowments, they engender loyalty in their membership by beguiling ceremony.  But they have little connection, let alone control over, the professions they once embodied.  This is because their regulation did not extend to new ways of practising and to competitive newcomers, and their sense of comprehensive identity was lost.

The same will happen to the Inns unless they keep their clear function - supporting and defining the professional identity and function of the Bar - flying the flag for it. They could learn a lesson from the Royal Medical Colleges, which have banded together into an Academy to formulate strategy, to maintain their prestige, their specialisms and their excellence in training, alongside the GMC and the BMA.  The function of the Inns today is admissions, advocacy training, disciplinary functions, support for the Bar's ethos and ultimate influence over standards in that the practice of the profession of barrister is under constant scrutiny by their peers and in court. The Inns are guardians of that perspective. The drive to maintain standards, that is exercised by one barrister in relation to another, or by judges over barristers, has to be recognised as effective professional pride and self regulation.  It was one of the most striking lessons I learned when I became chair of the BSB, although I had been aware of it to some extent as a teacher.

 

 

 

 

 

The perimeter of the Bar will be breached when some barristers start work in entities regulated by other regulators, notably the SRA, but others too like CLC.  The individuals will be regulated by the BSB, but entity regulation will trump that if there is a clash.  Sooner or later,  the consumer or the MoJ will see no point in having two regulators, or more, operating within the same firm ( they could be accountants, estate agents, funeral directors etc.), and no point in having identical regulators competing for business of law-like entities, driving each other down in standards and costs.  Lord Neuberger already said as much in his Inner Temple lecture,The Ethics of Professionalism, on 22 February.  Let me quote my favourite late Royal bencher, who said: "There were 3 of us in this marriage, so it was a bit crowded." There will be a call for one regulator per firm, and maybe one regulator per legal profession.  If there were only one regulator, it might be the LSB, and the LSB has not so far shown appreciation of the rationale for the bifurcation of the legal profession, let alone for the Bar, in the way that barristers and their existing partners do.

 

Why does this matter? It is for the sake of the client, broadly understood (who may be a member of the public, another lawyer, a judge, a witness, a department of government or anyone else involved in the law) and what the client wants from regulation.  They want their case advocated to the best of the barrister's ability, and advice of the highest order.  And the barrister needs recognition of the nature of his or her duty. That is recognition of the overriding duty to the court; otherwise the very system that the client is relying on will not support him.  Law needs a measure of predictability, and the notion of duty to the court is vital because it ensures impartiality, that all proper disclosures are made, that the law applies to everyone, the opponent, the criminal and the victim, or those he does business with, win or lose.  In other words, the barristers' behaviour is at the essence of the rule of law. As Lord Denning said, quoting Fuller: "be you ever so high, the law is above you."  And by that he meant not the hierarchy of regulators but the rule of law. That is also why fusion with the solicitors' profession is not on my agenda.

 

So the BSB has to guard the identity of the Bar and its future.  It is guided first by the regulatory objectives of the LSA 2007 - serving the consumer, the rule of law, access to justice, a strong, diverse and independent profession.  My take on its identity is - collegiality, commitment to excellence, independence of practice/spirit, international reputation and responsibility for spreading the rule of law; advocacy, expertise, responsibility to the rule of law and the court over and above that of the immediate interests of the client and the firm. The Bar is renowned for itspro bonowork and the cab-rank rule. I know that it is not an immutable rule, but it stands for the willingness of the barrister to take on every case, and has been described as the equivalent of the Hippocratic oath for lawyers; and that is why fusion must be avoided. Solicitors are under a duty to their partnership which does not square with the ideal that I have posited above.

 

As Erskine said on representing Tom Paine in 1792: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject in the court where he daily sits to practise, from that moment the liberties of England are at an end." In recent times, one is even more grateful that one can count on the Bar to protect the citizen against the government.

 

Therefore a line has to be drawn in the sand.  Logically the BSB could go all the way with entity regulation.  The evidenced desirability of BOPs leads inexorably to LDPs, ABSs, MDPs and then to the need for litigation, client money handling, direct access; and the next step in the logical progression is that all of this has to be available to the self employed bar as well as the employed.  Then there is no difference between the branches of the legal profession, no hallmark of the Bar, and eventually no clearly defined legal profession, because government and the LSB show signs of wanting to remove the notion of reserved legal activities limitations in order to  let others have a go at wills, divorce, personal injuries, conveyancing etc.  This is not ultimately to the benefit of the public, let alone to the professional commitment of lawyers.  So, learning from the rise and fall of the livery companies, the Bar's regulatory embrace might include all individuals who want to do  advocacyandsign up to the Bar's standards, and maybe the legal practice managers as well, if they join in entities.  (The Inns should welcome solicitors who want to join, provided they show that commitment; there is strength in numbers). And there may be individual barristers who go in the other direction and decide that their preferred loyalty is to their employing entity.  We may have an exchange of populations.

 

So when it comes to entity regulation, the BSB will listen to what the Bar is calling for, subject to its statutory duties.  I draw attention however to the need to maintain identity in the face of the problems presented to the Bar by ill considered legislation, now and in the past. We will take the lead in providing what you need. In my view the preservation of a distinct profession means that it would be desirable to concentrate on regulating only entities which have barristers in the majority, or specialise in advocacy or are recognisably barrister oriented.  Otherwise the fate of the Bar and the Inns will be like that of the Skinners or the Barbers Companies, no longer inclusive or identifying.  As I've already said, I think that COIC could and perhaps should learn something from the  formation of the Academy of Royal Medical Colleges, established to unify and provide strategy for the individual medical colleges.

 

You all know, and I will not rehearse them, that we made radical changes to the structure within which the Bar may operate last November.  Some may have thought we were slow to do so, but they can have no conception first, of the complexity of changing the rules and second, how extensively we studied and debated the impact that the changes might make on the profession and on access to justice, in the true sense, by the public.  The Bar has served it well for decades and change needs to be justified properly.  There is nothing to apologise for in taking the utmost care over the future of one of the most highly regarded professions in the world, one with international presence.

 

In April we distributed a questionnaire to every barrister to discover what the Bar wants and how it sees its future through entity regulation, a form of which is bound to happen in any case by legislativefiat.  We will be guided in entity regulation by whatever the Bar wants, but we will make these decisions not because the Bar needs to preserve its income but only in keeping with the statutory objectives.  Reflecting the desires and needs of the Bar, as revealed in the survey, and to the extent proper, we will create entity regulation that serves the public interest and the identity of the Bar.  We appreciate that the Bar wants and needs flexibility, that it suffers from legal aid pressure, the recession, HCA competition and a lack of friendliness towards it in high places. If you tell us in the survey and the consultation that will follow, that barristers should be permitted, as barristers, to engage in all the most elaborate of entities, we will respond to that.  But I take this opportunity to give you a clear warning that you have to avoid the fate of the livery companies on the one hand and of fusion on the other. Early results from our survey show that overwhelmingly, barristers want to be regulated by the BSB and to work independently or possibly in barrister-dominated entities. And of course the possibility of joining an entity is an option, not a requirement.  The Bar remains free to work as it has done in the past if it wishes to.

 

In doing this major job of regulation, we are fortunate to have access to many bodies where the Bar's future is discussed, and we are witness to the different perspectives.  It is a privilege for the Chair and Vice Chair of the BSB to be parties to the discussion in so many forums of the problems of the Bar.  The role, as I outlined it above, of the legal profession, and its hallmarks, are recognised in the various quarters of the Bar; but not by everybody.  Solicitors, for example, and especially HCAs, probably do not accept as wholly accurate my description of the excellence of the Bar, or as unharmful its centuries-old hold over advocacy, or as exclusive its tradition of responsibility to the court.  Other legal and non legal bodies may seek to regulate large parts of the work of the legal profession and may seek to offer the same training and take on advocacy. If standards are raised all round, that is to the good.

 

The Bar Council, representing the Bar, suffers from having a leader, strong as he is, for one year only.  Every year in the life of the Bar Council, in my experience, has called for the ability to cope with the concerns of that year.  In my time Desmond did a wonderful job in drawing to the attention of Ministers and the public the damage being inflicted on social mobility, on the profession, and on the consumers, by the arbitrary cuts in legal aid.  Nick has faced up to the demand for new ways of offering services, especially in the legal aid world, with the swift and efficient construction ofProcureCo; he has given the Bar some optimism about its future. Guy Mansfield had the foresight to recognise that there had to be independent regulation, and he led the Bar ahead of the legislation by setting up the BSB, for which the Bar should owe him a debt of gratitude. 

 

But because the Bar is overwhelmed with these pressures and is also aware that cutting legal aid expenditure is a given, regardless of the colour of the government or any permutation of coalition, it is not giving sufficient attention to finding one voice and looking to the future.  It is fire fighting one year at a time. One Bar needs One Voice.  I was amazed when I took up my post as chair of the BSB to discover that (although the BSB appointment is made for a term of years) the chair of the BC is appointed for one year only.  He (or she?) reaches his apogee in June, and then it is downhill all the way.  It is very good news that the immediate successor has a run in of one year and pays as close attention to the past and the future as Peter Lodder does, or Nick did in his vice chair year, and it would be even better if the run in could be three years, as Nick has proposed.  I understand why no barrister can take more than a year away from his practice to do the job of chair of the BC.  But is there not a case for say a President of the Bar Council (maybe a retired barrister of distinction) who could stay in place for three years, think about strategy, while leaving the running of the Bar to the Chair?

 

The Bar at this time has to speak with one voice and see itself in its entirety standing together.  The present Bar is fragmented when it comes to seeking a collective identity.  The BC, the AG (if he or she ever turns up), the Inns and COIC each serve varied interests.  Each lacks the monopoly of authority to create a new Bar in this new era; they react and dissect the conundrums presented to the Bar by the LSA and by government but - until today - continue in the same state of anxiety and uncertainty, and with a division of labour that lacks coherence.  The BSB is working on an MoU with the Inns, but that has to have a preamble that explains the Bar and where it is heading. The Bar need one voice, it needsavoice, for itself and in matters of national interest above and beyond the daily pressures that beset it.

 

I believe that fusion/merger should be resisted in the interests of the public. Importantly, this would also serve the young, able law students clamouring to join the Bar who can see its identity more clearly than those who have been steeped in it for years.  Maybe it says something for the principled teaching provided by the university law schools, of which I was a member for so long, that their young graduates can see the attractions of this profession and are willing to spend many thousands of pounds to join it, even without the certainty of a job at the end.  They are making sacrifices that my generation did not have to make, and we must respect their goal, or else there is no future, no rising juniors and no pool of the able silks in due course from whom to select the next generation of judges. Barristers and solicitors working together, which is the likely future, does not demand they do  the same work. Their skills remain complementary. In a proper competition of skills  the Bar will continue to be distinguished for advocacy and specialist advice, not for handling clients' affairs or money, one of the many skills reserved generally  to solicitors.  I often find analogy with the medical profession enlightening.  We want our general practitioners to cooperate seamlessly with specialists for the benefit of the patient; but we do not want the GP doing what only the surgeon is trained to do.  We want GPs to cooperate with pharmacists and nurses, but we want each of them to concentrate on what they do best.

 

How is the identity of the Bar to be shaped and protected?  The Inns have a mixed constituency and are limited in what they can do to define the Bar, although their role as educators, and providers of the resources to enable the poorest and ablest to join, is most welcome. Indeed essential.  COIC cannot give a clear lead because it is a mixture of judges and barristers who, I have the impression, retain their identity as members of Inns rather than as a collective. (cf Academy of Medical Colleges http://www.aomrc.org.uk/about-us/history-and-structure.html).  Like the Bar Council, the governance of COIC is too transient, it is dominated by the issues of the year, it has no long term plan and no clear concept of what it can do through the Inns and how to hear the voice of its constituents. The judges obviously cannot speak for the Bar, but up to this time they have been drawn largely from the Bar and are close to it.  That is no bad thing, because it entails a shared appreciation of the duty to the court and mutual trust. That alliance is also vulnerable if the pool of eligible barristers shrinks and more judges are chosen from elsewhere without the same tradition. The AG has not in recent years exercised the leadership that is traditionally his or her role, and it would be desirable that the AG should be representing the Bar in the corridors of power.  The BC serves all its constituents but has to concentrate on current problems, with the consequent short termism that I alluded to.  I congratulate the current Chair on recognising this and bringing about this conference to that end.  The Bar must explain and focus on what it does so well. There is no such focus at the moment, for reasons of history. Over the last 20 years there has been a compelling need to compete with solicitors, and decisions have been taken that cumulatively erode the boundary between the two branches of the legal profession.

 

If the Bar decides to identify and promote a distinct, sustainable and strong role for itself, it can continue as a discrete profession in the changing legal landscape that is now before us.  Only if the Bar recognises that it cannot place itself under the same overall control as other professions, and exercises some self denying ordinance, will it survive as such.

 

The Bar should therefore welcome in as individuals, barristers' clerks, legal practice managers, solicitor HCAs and others ready to exercise advocacy and accept its code of conduct, forming the family of the Bar, as it were.  The BSB should regulate entities that are recognisably for advocates, and the employed bar that have traditionally accepted the same standards, but it should not go head to head with the SRA, nor get into the expensive territory of regulation of  client money handling.  (This is not to say that we do not have, and will not continue to have, a constructive, supportive and amicable relationship with the SRA, whose problems and issues we share to a large extent.) The practising certificate fee would mount up in such a case and the downward spiral of competing regulators would spell the end of the 'niche' regulation we can otherwise achieve.   The referral bar can survive and be regulated by the BSB as hitherto easily enough. If and when models likeProcurecodevelop intoSupplyco, that will be regulated and will give us an indication of what the Bar wants to be like. Supplycowill have to fit into the model of regulation offered by the BSB and not the other way around.  That is why the BC and the BSB have to sing from the same hymn sheet.  There is no point in allowing aSupplycoto grow into an entity that does not measure up to the regulatory objectives of the LSA; nor is there any point in the BSB developing entity regulation models that do not suit the Bar.  The LSB should accept that there is a need for different types of regulation, niche regulation if you like, and it would be contrary to the spirit of the LSA if it did not give free rein to various models.  Let a thousand flowers bloom.  We should be open with the SRA about differentiating this profession from the one that they control.  They will have the firms under their umbrella, the mixed ABSs and maybe Tesco Law.  My aim is that the BSB will have in its fold advocacy and specialist centred entities and, of course, the employed bar as ever.  But the Bar is not a one-stop shop for all clients. We wish to regulate entities that offer, as entities, what the Bar offers as individuals - specialist advice (including that given by the employed) and advocacy in organisations, and partnerships andSupplycos.  They may well have at their helm a "head of chambers plus", that is an individual who takes custodianship of bar ethics and the governance of the entity under our code of conduct, and that code may well extend to everyone who works in the chambers-like entity. The presumption should be that entities that concentrate on substantial amounts of litigation and client money handling should be left to the SRA, with all that that entails. The attractions of BSB regulation ought to be such that more individuals will wish to join and if necessary take the extra advocacy training or even the total qualification needed to be a barrister.

 

The flag of regulation by the BSB still counts for a great deal.  It signals integrity, honesty, commitment to the client and, above all, to the court or, and in advice giving or advocacy , the rule of law.  It is arguable that the barristers of the government legal service, or those of the CPS, or those employed in major solicitors' firms, may be sufficiently cohesive and numerous each to have their own entity regulator. Nevertheless,  individual regulation by the code of the BSB  clearly signals duties above and beyond those demanded by the government of the day or the firms.  It would provide a protection against any demands by the employer that were inconsistent with Bar regulation. It would provide a firm ethical shield for the employed barristers, were there ever demands on them, political or financial, threatening the standards of the Bar as we know it. Is there a risk that barristers working for government become too closely aligned with government policy and, more generally, that in-house barristers become too close to the policy demands of the organisation that they serve, and develop a solicitor-client relationship rather than that of the independent lawyer exercising his or her independent judgment? (on which see Hammond & Penrose OFT report). We should be aware of that. Barristers, in whatever entity they work, are and will be identified by their duties to the court and to the rule of law, regardless of the demands of the entity, and by their upholding of the professional standards set out by the BSB.

 

Having said that I come logically to the future of education.  In my career as a law teacher, long before I had ever heard of entity regulation and new working structures, it was clear to me that young people were being compelled, at the age of 20 or so, to decide whether they wanted to be barristers or solicitors, and that this was far too early, before they were fully aware of how their talents might develop.  This is because they have to decide before graduation whether to apply to a bar school and to join an Inn.  Sometimes the decision turned on affordability - before chambers started to pay pupils, and when Inn scholarships were not as generous as they are today, some young people became solicitors when they would have preferred to be called to the Bar. 

 

It seems to me inevitable that we must revisit the entirety of professional legal education.  A law degree, yes, and that fits the law graduate for many different professions, not just solicitor and barrister - politician being one of them! Then, in an ideal world, I believe that the course that they take to qualify them for the profession should be one that fits them for the new world of referral barristers as well as dual capacity practitioners, ABS practitioners as well as Tesco law workers and BO Partners.  They should not have to decide, if they do not feel able to, what branch of the profession to join until they have experienced practice; maybe at age 30 they will decide to become referral barristers or heads of compliance, heads of legal practice in a multidisciplinary firm, or advocates working within a firm that is largely solicitors and so on. That means that there should be consideration of merging the courses offered by the existing LPC and BPTC, and merging the schools. 

 

I recommend the establishment of a Future Legal Education Committee, looking at the similarities and differences between the courses that prepare for the solicitors' profession and for the Bar; with a view to ensuring that young graduates can take one and the same course (even if it takes 18 months) that gives them the option of covering advocacy as well as management, accounts and bar ethics, so that they retain freedom of choice in the future.  At the end of the course they ought to receive a more prestigious diploma or a Masters' degree (especially since many of them will not in the end be able to get the particular jobs they seek in the legal profession; they ought to have a valuable transferable professional certificate to show for their studies at least).  Some might decide at the outset that they are going to the Bar; others that they want to try practising in different capacities and then choose where to settle down, or even switch from one sort of practice to another.  If they want to be advocates, then they would have to be called to Bar at the time of their choosing, having taken the common exam, and then they would have to do pupillage, but at least they would have the paper qualification necessary, so that switching to the Bar at a later stage would be easier. There are too many hard cases at the moment of young people who have made the wrong choice, spent a lot of money and have no prospect of a job on the side of the profession that they signed up to, and who need or want to switch. Even without that radical change, we need to examine transfer from one branch of the profession into another, specifically from solicitors to barristers, at every level. Ease of transfer, yes, welcome of new barristers, yes, but insistence on proof of the necessary advocacy competence and commitment to the values of the Bar. There is no passport to a parking place . . .

 

The question of the future of the Bar is one of vital importance not just to the people in this room but to the rule of law here and abroad.  The BSB is ready to carve out and protect the identity and hence the future of the Bar, and it has a clear conception of the Bar's role and values and characteristics.  We will do this by providing the entity regulation that the Bar needs, necessarily guided by the statutory objectives, and we will speak up for and focus on the identity of the Bar, as I have outlined it today.  We will continue to look ahead, as well as at the history of the Bar, and we will take a long term view which we can hand to our successors, in cooperation with the Bar Council and the Inns.  We urge all parts of the profession to come together in pursuit of that ideal.  In a time of recession when one has to look to what is real lasting value; in a time when our notion of the constitution has been thrown to the winds and is in the process of being reassembled; that is when the talent and the expertise of the Bar should be strongly asserting its presence. If the Tories and the Lib Dems can do it, how much easier for a profession all of whom were educated in the same ideals.

 

 

The Baroness Deech DBE

10 June 2010