ACCESS TO THE BAR’S SERVICES

A VISION FOR THE FUTURE

8th October 2007

TIMOTHY DUTTON QC

VICE-CHAIRMAN OF THE BAR COUNCIL OF ENGLAND AND WALES

  1. It is a pleasure to address you at this your inaugural meeting. I wish you and the members of PABA every success for the future.
  1. Before turning to the substance of this talk I ought to set out some of my own background. For two years I was Vice-Chairman of Bardirect, the Access Committee of the Bar Council (Chair Marion Simmons QC) as it is now known, and I worked hard on ensuring that we got the balance right between referral and “licensed access”. The scheme was then in comparatively early days and it has grown from strength to strength under the chairmanship of Marion, then Anthony Speaight QC and more recently Paul Darling QC. As a result of some of our early work we licensed organisations such as the MPS (amongst many) and undertook training courses with them to ensure that they could prepare instruction which suited our essentially referral mechanism for work as barristers. I believe that many have gained from this and I appreciate the sensible and mature way the Law Society and firms of solicitors have reacted to what is a very good scheme intended to serve the public interest. The scheme has of course now expanded to Public Access which requires the barrister offering the service to have undergone training, and to comply with the obligations of a barrister undertaking the work as to record keeping and so on.
  1. The slightly grandiose title of this talk has been chosen I think because we are at a significant cross roads for the future of the Bar. The “cross roads” which we have reached is one where we have at the “crossing” the roads which lead from (if not to) solicitors, barristers, and the Legal Services Bill shortly to become the Legal Services Act 2007. Into this mix we have another road, which is the Higher Rights Advocate or the Higher Courts Advocate depending upon which description you prefer. By HRA I am referring to solicitor advocates with rights to appear in the Higher Criminal and/or Civil Courts and by HCA I am referring to the same thing as well as employed barristers only it happens to be the description given by the CPS when it deploys in–house personnel. We can add another lane in at this juncture (or junction to keep the metaphor going) the recent announcement by the Solicitors Regulation Authority that it intends to regulate advocacy amongst its members by reference to the Solicitors Code 2007 and no other duties. That is a subject about which I have strong views. Not to regulate advocacy by a clear Code is a mistake.
  1. The title of the lecture uses the word “Bar”: I am going to refer to “The Bar” not in the sense of the Bar as the collective - a referral model - as we currently know it but by in the sense of barrister: someone who has been specifically trained to undertake advocacy in courtor before tribunals and is regulated by the BSB whether he offers his services only via a solicitor or not. Self evidently I must refer to the referral model by which we largely supply our services at present, and I will discuss what may happen to this model. The barrister at present supplies his/her services through a referral mechanism save only to the extent permitted under our carefully crafted PAS[1] or LA[2] arrangements.
  1. We cannot discuss what vision any one of us has for the provision of services by the Bar in future without asking and answering two fundamental questions. The first is: what is required, and what will be required in the future, of those who practise advocacy in the UK in terms of their core skills? Unless we can answer this question we have not reached base camp on our ascent of the mountain.
  1. The second question is: what is going to be the likely need for the services provided by the modern day barrister in the future ?
  1. Then we need to examine two further questions. How can the Bar (i.e. barristers) satisfy that need ?And, finally how will the barrister be regulated?
  1. So we really do have an Everest to climb or a large meal to eat this evening, whichever inappropriate metaphor takes your fancy.
  1. As is, I hope now well known, the Legal Services Bill comes back to the Commons for its third reading on 15th October and then to the Lords on 17th October for its finalconsideration before becoming law. It will be a once in a generation change to the way legal services are regulated, and in turn provided. Everyone must by now appreciate that we are to be regulated in future (i.e. after 2010) under the eyes of an oversight regulator – the LSB, and that the portal for all complaints will be the OLC.
  1. So: to the questions

What are the skills required of an advocate now and in the future?

  1. In 2002 I chaired a Bar Council and Inns working party which had amongst its members some distinguished figures: one member of the Court of Appeal and now House of Lords (Lord Walker), one High Court Judge, Pitchford J and other distinguished advocates, advocacy trainers. Our remit was to look at the provision of advocacy training and how it might develop in future.
  1. I order to address the questions posed, we needed to define the essential skills required of an advocate in England and Wales. Unless we could do this we could hardly say what was required to teach the skills. Curiously very few people have ever attempted to define in one go the essential skills of advocacy: we tend to think that it is, as Jane Austen would have said, all about persuasion , or that they are so obvious that they do not need to be articulated. We then tend to slip into anecdotes about what could or should be done in order to the job well without ever actually identifying the essential skills of the advocate in the first place. Interestingly, we discovered that once we did attempt to articulate them we did not always say the same thing.
  1. The Working Party in its first report of October 2002 stated that the essential skills for a persuasive modern advocate are, in combination:
  • Ability To Persuade Orally
  • Ability to Persuade in Written Argument
  • Cogent Legal and Factual Analysis
  • Ability to Develop Reasoned Argument
  • Forensic Skills with Evidence (both written and oral)
  • All of the foregoing undertaken to high ethical standards

We went on to say “the Bar of England and Wales (“the Bar”) is regarded as pre-eminent in the provision of high quality advocacy services precisely because its members have a reputation for combining and maintaining these skills consistently to the highest standards”.

  1. The background to the identification of these requirements is an adversarial system. In a civil law system there is lessof a requirement that the advocate should be skilled in cross examination or indeed written submission since they have less of a role to play. Much of the skill is transferred to the judge although I have doubts that the roles have been well enough defined in some civil jurisdictions, and my own view is that better definition and development of skills traditionally associated with an adversarial system would go down well in many civil jurisdictions. But I have little doubt that the English,and common law, adversarial system is here to stay. Occasionally, voices are heard against it. Marcel Berlins wrote in last week’s Guardian that much could be save on the legal aid budget if we somehow did away with the need to have advocates who probed the evidence, asked questions and made speeches: why not he inferred move (somehow) to a civil law system where the advocate is more of a bystander (he pointed out that the French legal aid system is, as Lord Carter observed[i], much cheaper than ours). But there were virtually no voices raised in support of Marcel on this occasion and we have a system which by probing and testing as it does in the full glare of public view is recognised to be at least as good if not a great deal better than those of our EU neighbours. I was heartened to hear public demands for good old British Justice during the recent press coverage of the Madeleine McCann case. What was being asked for was the methodical approach of the police, the CPS (with our law of contempt which might possibly have acted as a brake on some of the lavish reporting) and if any charges were to be brought a well adjudicated process under which evidence is carefully tested and the issues presented to an impartial jury. Let all take heed. The call for British Justice requires that all involved nurture the system of justice: it is still held in high regard around the world, and nothing we or Government do should diminish the respect it still has in the eyes of the public. Two things will put that respect at risk: (a) any lowering of standards by those involved (where that be solicitors, barristers, judges, police or court staff) and (ii) any lack of investment in the system: the two are obviously inter related. The public will only know that something has gone wrong well after we have made mistakes
  1. So; the skills in this respect that the English advocate is likely to need in future are, in my view, likely to be those required in an adversarial, common law system.
  1. All of us know that to be a good advocate one must be able at an early stage to analyse the legal and factual issues (see The Working Party’s bullet points) and to give high quality legal advice. The best advocates are those who can predict, when presented with the facts of a case, what the likely outcome would be in 2 years time when the case has gone to court (or arbitration etc). To be able to make these predictions accurately so as to advise the client well requires cogent factual and legal analysis. The point I want to make here is that the early identification of issues and of the likely outcome to a problem or dispute is where barristers are often at their most useful to the public: it is enormously important that a defendant should be told in a criminal case either that he has a defence and should fight or that he has not and would be well advised to plead guilty for his own and everyone else’s good (including the Exchequer). The same is true in all spheres in which we work, and family law, child care cases are no exception. It is for this reason that Lord Carter correctly identified the need for advocates to be instructed in and to “own” their case from an early stage. It is essential that the CPS grasps this point too: the person who will have the conduct of the later stages of the process must be brought in as early as possible, for this is the route to good decision making, the obtaining of the right result, and ultimately to the saving of costs. It is also the same in heavy commercial cases: it is as well in a commercial case to know for example what construction the Court might place on the contract and indeed whether the proper law of the contract is English or some other. Early advice from a skilled practitioner able to predict where a Court may go is invaluable and may save thousands if not millions in expenditure on lawyers.
  1. Experience of the end of the process (a trial or an appeal) brings the essential skill – i.e. an ability to advise on merit very early – into play. Unless you can predict the outcome and you know what the pitfalls are along the way you are of little use as an advocate save possibly when we get to the end of the process and you have your moment of ultimate presentation, but this really is leaving it all too late. I regret the fact that when I sit as a Recorder I am often left to observe the trial advocate having to cobble a case together and do the best he/she can because basic steps have not been taken along the way. This is a key point and I shall return to it. It is where the CPS current HCA usage is flawed. Simply demanding of advocates that they do directions hearings en masse is contrary to the very ethos of decision making by the person who will bear the ultimate responsibility at the trial. Personal responsibility for all decisions taken along the way to the final hearing is an absolute essential of good advocacy and good case management. Quality decision making lies at the heart of the economic disposal of cases.
  1. The upshot of all of this is that I will, next year as Chairman of the Bar, be encouraging the public and solicitors alike to think first of the person who can advise them of the likely end solution to a problem: that is the person who can make informed predictions about the merits at the end of the process – that is the barrister/advocate. Add to this the consideration that our overheads in self employed practice are much lower than those of partnerships, and the economic case for early instruction of the advocate is very clear.

The Likely Need For Barrister Services in Future

  1. It is notoriously difficult to predict what need the public are going to have for barristers (advocates) in the future.
  1. We can however learn a little from recent history. In 1979, when I joined the profession, we had c 5,000 barristers, and I believe around 45,000 solicitors with PCs. We now have 11,500 barristers inself employed practice about 3,500 in employed practice and 144,000 solicitors of whom about 120,000 have PCs.
  1. It does not of course follow that there is an absolute need for so many but even allowing for the odd patch of under-employment the indications are that Society in the UK wants lawyers more and not less. In any case two social features underscore this need. First, as Society becomes better informed (if not better educated) it becomes increasingly aware of its rights. Authorities have become increasingly aware of their duties to act in the public interest and to enforce regulations. Hence the growth of administrative, public and regulatory law. That awareness breeds a desire to go to law, or at least to seek advice as to the likely solution to a problem should one have to go to law. Second: law has become more complex. Indeed in some areas markedly so. You cannot practice properly in criminal law these days as an advocate without a detailed working knowledge of the CJA 2003, the Human Rights Act 1998, the ECHR, PACE, various statutes relevant to sentencing powers, the Sentencing Guidelines Council’s publications, the Criminal Procedure Rules, and last but by no means least, a working knowledge of the substantivecriminal law including for example the most recent Sexual Offences Act which has so radically re-defined rape. All of this increases the need for the skilled advocate. I have picked on crime to demonstrate a point. It is an acute one because as we all know the Government has wanted to reduce the payments of legal aid in crime. Judged by the increased burdens on criminal practitioners this desire does not reflect the increased complexity and burdens in the work of the advocate. I could make the point in virtually every other area of law – e.g. Financial Service Regulation, Family, and Employment to name but three.
  1. History tells us that there has been an inexorable increase in the demand for barrister services. But that begs the question as to where the demand current or future will be required to be met whether under the current predominantly referral arrangements or differently.
  1. To address this question we need to remind ourselves of the reasons for the referral model. The reason for the referral barrister model is that advocacy is of itself a specialist skill, and requires the practitioner to concentrate only upon it, and the advisory and drafting work relating to it. This requires that work be referred to him. The image that I like to use in this context is that of a brain surgeon. We allneed doctors and this is why we have a GP system. We rarely need that category of doctor called a brain surgeon but when we do we ask the GP to find a suitable one and to refer us, the patient, to him. You might go direct to such a person if say, you had all of your medical notes on hand from a previous consultation and you simply wanted a second opinion. In which case ring him up and go down to Harley Street(if you can afford it) to see him. Ironically the NHS does, I believe, insist on the referral model in this example more keenly than does the private health market. So too of the barrister. The skill is specialist and requires concentration upon and practice of its core elements. The more you dilute the skill by undertaking office admin, personnel management etc, the less likely you will make the correct prediction for cases or conduct them in the best way possible for your clients.
  1. There is a second reason for the historical separation: that is that there should be available to the public a sufficient number of barristers of sufficient skill such as to enable the public to have the advocate of choice at one’s trial, and the person regarded as the most skilled to undertake the case. The cab rank rule is there to ensure this protection. If you strip away the referral mechanism completely you push the advocate into partnerships or employment and you therefore restrict choice. An advocate in a partnership is conflicted from acting against his fellow partners. An employed advocate is restricted to a diet of only his employer’s cases. This tends to decreaseor at least dampen the development of his skillsand possibly his independence as he becomes associated with one employer and one type of case. Variety is, as they say, the spice of life. No variety and it can become a pretty bland fare all week. I do not want to over exaggerate this point: good employers ensure a good mix of work to in-house advocates and in any event the in house advocate may move across from employed to self employed or from one employer to another. But the risk of overdependence on one source of one type of case is there nevertheless.
  1. I have no doubt at all that English barristers following the cab rank rule are demonstrably more independent minded in court than their fused counterparts. I have worked in both systems and I have seen a palpable difference.
  1. There is however a tension in this model. What of the intelligent and informed client: the person who does not need a solicitor to do the prep particularly the preparation for advisory work if not the litigation management work should the case fight?
  1. Just as expansion of the Bar is obviously true so is it clear that the UK population as a whole is more literate, better educated and informed than it was even 20 years ago. Most people now know not only how to read or write but how to do so at speed, using computers and adding into any exchange as many exhibits (or attachments) as they care to choose. It follows that as time goes by the argument for relaxing the absolute rule that a solicitor intermediary be used in every case has become stronger. If the barrister can be supplied with papers and instructions by thelay client in such a way as is as good as the solicitor, as well researched and informed, then why spend money on two? But the fact remains that increased use of direct access will not cause the basic model to change for ultimately the client needs the litigation support of the solicitor. If that model is to change there will need to some other factor in play.
  1. I believe that recent trends indicate that the public is more ready than it was hitherto to seek the help and assistance of the barrister direct. I can demonstrate the point in two ways. First there is the steady growth of both licensed access and direct access which we have seen over the past several years. Second, we can learn a little from what has happened since the Woolf Reforms were implemented in 2000. The number of issued High Court proceedings has reduced very dramatically. Part of the reason for this must be that clients are receiving earlier and one hopes better informed advice about the prospects of success and the costs of fighting against the odds. This point is borne out by the growth in numbers year on year at the civil Bar despite the fact that the actual numbers of cases which fight to trial appears to have diminished. These trends indicate to me that the Bar’s advisory skills have become more prominent in the process. This in turn supports my thesis that early instruction of the person with trial skills assists in the overall solution to the case. In turn this suggests that whether through solicitors or direct the Bar’s advisory skills are going to increase in importance as one of the most important skills. None of this should serve to diminish any of the other core advocacy skills and in particular the ability to handle witnesses: the prediction that is needed early may well include a prediction as to whether an important witness will or will not withstand cross examination on matters relevant to the merits of the case as they relate to the issues properly defined. Nor does it indicate a need no longer to have litigators (solicitors) and advocates: plainly one needs both.
  1. This thesis indicates that the Bar will or should continue as a referral profession of expert advocates who provide skilled advice and drafting. The demand should remain particularly for advice in specialist fields against a background of specialist advocacy skills. As I predict there will or should be earlier requests for expert advice and opinions than has been the case hitherto.

How can the Bar (i.e. barristers) satisfy that need?