I believe in three guiding principles for the Bar.

First, we must be a united profession. Members of the publicly and the privately funded Bar, and of the employed and self-employed Bars, must work together as equals to preserve and enhance the success of our profession.
Secondly, our guiding light must be high standards in terms of both quality and ethics.
Thirdly, the Bar must be, and be perceived to be, accessible to entrants from all backgrounds.
The profession must have renewed confidence in its own ability to produce the best advocacy. It will only survive and prosper if we adhere to these principles, and make each of them a reality.

Against the background of these principles, it is instructive to review my main objectives for 2007 to see what progress has been made.

• Negotiating a stable foundation for publicly funded advocacy.
• Dealing with the increasing competition from HCAs in both prosecution and defence work.
• Making the Bar more accessible to entrants from all backgrounds.
• Creating a blueprint for the regulatory environment in which barristers will practice in the future.
• Finding ways to assure the public of the quality of the service they receive from the Bar.

Publicly funding work

As always, there is a mixed picture.

The good news is that the criminal revised advocacy graduated fee scheme (RAGFS) that Lord Carter recommended will now be put in place in April 2007. It will provide increases in fees for defence work, restoring the ravages of inflation over the last 10 years, and providing the redistribution from the long cases to the 1-10 day cases that we have campaigned for. I cannot over-estimate the amount of work that so many practitioners and Bar Council staff have contributed towards achieving this.

There are other less positive developments.

First, the Government has brought forward the time when the RAGFS and the new litigators’ graduated fee scheme (LGFS) may be harmonised, so as to produce one case one fee, to October 2008. At that time, it is intended to introduce price competitive tendering (PCT). Our view is that neither measure is necessary or appropriate, and we intend to argue our case forcefully during the forthcoming consultation process.

Secondly, the Government has no clear direction on VHCCs, and their recent consultation paper suggests a cut rate version of the present scheme. What is needed is an architecture which will incentivise early preparation and efficient disposal of long cases. That can only be achieved if case fees are bid or negotiated so that the highest quality advocates can take ownership of the cases and achieve fast, just outcomes.

Thirdly, the prospects of the forthcoming (at the time of writing) consultation on family fees are not comforting. There is an attempt to force the profession to fund the increasing volume of public family cases by accepting lower fees. This is unfair and inappropriate. It is not the lawyers’ fault that social conditions lead to increased care issues, and the Government cannot expect the lawyers to accept reduced fees just because there are more cases. The Family Barristers’ Graduated Fees Scheme must be preserved.

Despite these issues, I remain optimistic that we will succeed in persuading the DCA/ LSC that the availability of proper public funding for criminal and family cases is crucial to the future of our democratic society; reducing the fees to a level at which only the least able will be prepared to do the work is a recipe for disaster.

Competition from HCAs

Advocacy is a specialist skill in which barristers generally excel. Barristers do not, however, have a monopoly on the practice of advocacy. It is a fact of life that HCAs are increasingly keen to compete for advocacy in Crown Courts and elsewhere. Competition on a level playing field is to be welcomed. But quality controls must the same for all advocates undertaking the same work. Advocates in the CPS, in solicitors firms, and at the self-employed Bar must be judged by the same standards, and the work should be awarded on the basis of merit and fair pricing.
The quality of the justice system will be threatened if advocates are chosen because they are available in-house without regard to whether or not they are sufficiently able and experienced to undertake the type of case in question. Moreover, it blows a gaping hole in the Carter philosophy of the advocate’s ownership of his/ her cases, if HCAs in the CPS or in solicitors’ firms keep a case in-house until they see if it cracks, before deciding to instruct self-employed counsel only if it looks like a fight – and then only at the last minute. This undesirable practice is becoming more prevalent and should be stopped: again it threatens the quality and efficiency of justice.

Making the Bar more accessible

It is good to see that much has been written on this topic in recent months. Historically, the Bar has talked extensively about accessibility and has appointed numerous working parties to consider the issue. In this context, it is crucial that our present initiatives are successful, and that they do not result in the issue being kicked one more time into the long grass. We must act now to reduce the barriers to entry, both real and perceived.

I would be the first to accept that school placement programmes and a BVC loan scheme (which the Bar Council and the Inns are collaborating to introduce now) will not be enough, by themselves, to achieve the desired results. But they are a step in the right direction. The fact that we need some fundamental culture changes is not an excuse for doing nothing. We need to persuade our own people to realise that the Bar is an intimidating profession even to the most able entrants. Once that is understood and we present ourselves as genuinely accessible, we can start to explain how selection processes within Chambers can be made more equitable so that the candidates from the less traditional socio-economic backgrounds are not disadvantaged.

The new regulatory environment

In the context of the passage of the Legal Services Bill through Parliament, much has also been written recently on this topic. I believe that the new regulatory environment is an opportunity for the Bar to launch itself into the 21st century with renewed confidence. Regulation by the ring-fenced Bar Standards Board (BSB) and the light touch oversight regulator, the Legal Services Board, should persuade even the most sceptical member of the public that the Bar’s house is truly in order.

If the Bar Council (through the BSB) accepts after the present consultation process that it is prepared to regulate all those who undertake full time advocacy in whatever business entities, the last vestiges of restrictive practices will be gone. The Bar will be competing on an equal footing with all other advocates. And I for one have no doubt that we will compete successfully with all comers, because we can provide the highest quality service at the lowest price, since we generally have (and we generally need) the lowest overheads and infrastructure to undertake our work efficiently.

Quality assurance

Barristers have conventionally thought that they did not require any kind of quality assurance or accreditation. Surely, they would say, the fact that we are members of one of the great professions is enough for our clients to be confident in the quality of services we offer. And more than that, surely we are quality controlled by solicitors exercising experienced judgment in choosing whom to instruct for a particular case.

A problem has now developed with this approach, at least in publicly funded work. Less real choice is now exercised by prosecuting authorities and defence solicitors, particularly in respect of very junior advocates. This is because the solicitors in charge of cases are not often able to justify the time spent in attending Court to sit behind their instructed advocates. As a result, quality assurance mechanisms are more necessary to provide confidence in the capability of the advocate.

In addition, it is for the benefit of the profession to be able to demonstrate effective quality control processes. We should not be afraid of these innovations. They are needed to enable the Bar to thrive in the modern world, where competence has to be demonstrated at every stage of a professional career.

There are presently 4 initiatives on the quality front: First, the new quality assurance scheme recommended by Lord Carter, which will be introduced in the first instance for publicly funded criminal work. Secondly, making advocacy training a compulsory part of the CPD requirement for those between 4 and 6 years call. Thirdly, the establishment of the Bar Quality Advisory Panel to assist those who fall below the usually high standards of the profession. Fourthly, the BSB is undertaking a major quality assurance review to ascertain what measures are necessary to reassure the public that they are receiving a quality service.

Conclusion

We must have confidence in the profession of which we are part. The future is bright if we grasp the opportunities that present themselves. The demand for high quality advocacy is greater than ever, and we know that we are best placed effectively to service that demand.

Geoffrey Vos QC, Chairman, Bar Council