The Bar Council and Criminal Bar Association believe it would be lawful for them to take direct action to protect members’ interests, it has emerged.
A note of a CBA executive committee meeting from earlier this month, seen by the Gazette, said: ‘The CBA has sought advice from experts on the legality of taking direct action. The short answer is that it is lawful! The CBA and Bar Council can ballot and coordinate direct action.’
The note said that the advice was sought from competition law specialist Mark Brealey; employment law specialist Robin Allen; and criminal specialists David Perry QC and Clare Montgomery QC.
It had been thought that competition law prevented any concerted or coordinated action by representative bodies such as the CBA and the Bar Council.
A Bar Council spokesman confirmed that the CBA had sought advice on the legality of direct action, but said any comment on the outcome of that advice was speculation.
However, in an email sent to CBA members on Friday afternoon, CBA chair Max Hill QC said many members had been asking about the possibility of direct action.
He wrote: ‘I remain committed to publishing legal advice on direct action, which the CBA has sought as a result of the national meeting on 26 July.
‘To put that another way, allow me to gather in the legal advice, and then I will tell you what it says. In that way every one of you will know where you stand,’ he said.
Hill stressed that the discussion regarding the legality or otherwise of any form of direct action was not linked with the disquiet felt by many over the Quality Assurance Scheme for Advocates (QASA). He said: ‘I hope that nobody will confuse that issue [direct action] with QASA.’
Criminal barristers voiced concern last week over proposals for the new accreditation scheme that will be mandatory for all criminal advocates doing publicly funded work.
Plans emerged that under QASA, the Legal Services Commission wants to link the payments to Crown court advocates to the competence level of QASA attained, removing any higher payment made to QCs.
In 2005, many criminal barristers refused to accept new instructions in protest over legal aid fee rates, and in 2008 most QCs declined to accept work under the new very high cost criminal case scheme over fee rates considered to be inadequate.
On both occasions barristers and their representative bodies were careful to point out that the decisions not to accept work had been made individually by barristers and not a result of any concerted action, coordinated or sanctioned by them.