The new chairman of the bar council is bracing himself for a challenging tenure, he tells Catherine Baksi


Tanned after returning from his sporty Christmas holidays in South Africa, Tim Dutton QC, the new chairman of the Bar Council, has been thrust into his first fight on behalf of the 15,000 barristers he now leads: against the Legal Services Commission (LSC), over the very high cost case (VHCC) panel.



The new tendering process saw defence teams made up of solicitor firms and barristers bidding to undertake work in the most serious and lengthy criminal cases. The scheme has not been a hit with either side of the legal profession, and could now be in jeopardy after many barristers boycotted it because of low fee rates and unacceptable terms.



The days leading up to the deadline for barristers to sign the new contract – 21 January 2008 – saw some strongly worded exchanges between the LSC and the Bar Council, with the LSC threatening to report the bar to the Office of Fair Trading for contravening the Competition Act were it to emerge that barristers had colluded with or been coerced by the Bar Council into boycotting the scheme.



Mr Dutton strongly refutes the implied allegations. ‘We’ve been scrupulously careful to give cautious competition law advice to the profession and I was a little saddened by that letter.



'I’ve worked very closely with the LSC and I’m going to continue to do so to try to find a scheme which is not inflationary, which is merit-driven and ensures you get the best people to do these highly complex cases, and which gives you shorter, efficiently managed cases.’



He questioned whether the VHCC scheme would be viable if an insufficient number of high-quality advocates accept the contracts. ‘This is a market-testing exercise, so if the market hasn’t responded in sufficient numbers, it indicates there’s something wrong with the scheme so far as these individuals are concerned, and [the LSC] is going to have to make a decision about whether or not to go ahead.’



If the LSC decides the scheme is not viable, Mr Dutton is keen to help create a scheme that will work, based on all the principles he has outlined. Those principles, he says, are shared: ‘I’m as keen as anyone to solve this because, if we don’t, you’ll have problems in the criminal justice system and a dissatisfied profession, which means you won’t get the best people joining, clients won’t get the best service and then things can go wrong.’



Unfortunately for Mr Dutton, this is likely to be only one of a number of battles with the LSC on behalf of the publicly funded bar during his tenure. The next big fight will be over price-competitive tendering and the proposal to pay for cases on a one-case-one-fee (OCOF) basis – whereby solicitors bid for work and are paid an agreed fee out of which they will then pay the barrister. BVT and OCOF are areas the Bar Council is working ‘vigorously’ on, says Mr Dutton, with three teams responding to the LSC’s consultation.



'The first point to make is that the idea, as currently presented, for BVT on an OCOF basis for Crown Court and family work is flawed because the cases are too complex and don’t lend themselves to a commoditised method of procurement.’



The government must, says Mr Dutton, recognise its monopolistic position and not risk damaging the quality of provision of legal services, which would be contrary to the public interest.



Another big challenge will be readying the profession for the post-Legal Services Act world.



‘There are major issues we need to address on this – what are the regulations going to be to govern the Legal Services Board, what are the cost implications of it, and under what business structures are advocacy services going to be provided come 2011-12? We have to start thinking about these things now, so that the profession makes its mind up as to the structural way it wants to operate and by whom it wants to be regulated.’



The Legal Services Act 2007 paves the way for different models for the delivery of legal services, with the possibility of barristers going into partnership with other lawyers in legal disciplinary partnerships or with other professionals in multi-disciplinary practices.



A recent Bar Standards Board survey revealed some enthusiasm for alternative business structures among barristers, but while the new chairman is keen to ensure the bar approaches the debate with an open mind, his preference is for the referral model to continue. He says it preserves client choice and lets barristers receive instructions from the widest selection of sources without being in any way limited due to a conflict of interest.



Another hot topic for Mr Dutton will be the increased use of in-house advocates by the Crown Prosecution Service (CPS). This is not, he says, a dispute over territory – Mr Dutton represents some 800 employed barristers who work for the CPS – but a matter of ensuring the highest quality of service in the criminal courts.



‘We agreed a set of principles with the CPS and the Attorney General which are designed to ensure high standards, with case ownership from an early stage and good case preparation, and a fair distribution of work between the self-employed bar and in-house advocates.’



The problem, he says, is ensuring those principles are followed.



On a sartorial note, the new chairman finds himself charged with the duty to advise the Lord Chief Justice on whether court dress for barristers in the civil and family courts should be changed, following Lord Phillips’s announcement to simplify judicial dress. A recent Bar Council survey showed the majority of barristers favoured the retention of wigs and gowns in family and civil cases (there are no plans to change dress in criminal cases).



‘We are working with the specialist bar associations and circuits to find a solution that works, but I fully expect wigs and gowns will remain – they are the trademark of a barrister.’



So, if they are the bar’s trademark, how does he feel about solicitors being able to wear wigs?



‘If you’re a higher rights advocate and have gone through the same hoops as barristers, why shouldn’t you wear the same clothes?’



On QC appointments, the latest of which were announced earlier this month, Mr Dutton, who was made up in 1998, says: ‘It’s an internationally recognised kitemark and we’re keen to ensure the system works well.’ But he also wants the system to be annualised and work to a regular timetable, with fixed dates for application and appointment.



Despite fee wrangles for the publicly funded bar, and the steady stream of anti-lawyer sentiment flowing from some in the press and government, Mr Dutton insists the bar is in robust health.



From a diversity perspective, he says the bar is making progress, with statistics soon to be released by the Bar Standards Board that point to an improvement.



‘The concern that people from particular socio-economic backgrounds and racial backgrounds [find becoming barristers difficult] is reducing,’ he says.



He is, however, far from complacent. One area of particular concern he highlights is the glass ceiling that still exists for women.



‘We need to look at pragmatic and practical things to tackle this issue. We’re working with the Inns to see how crèche facilities could be set up.’



But what needs to be done is more than just the addition of more crèches. ‘There needs to be some form of structured re-entry into the profession to ensure parents returning from leave get the support needed from their clerks, colleagues and solicitors to enable their practices to continue to thrive.’



The bar is also looking at how the 57 recommendations of Lord Neuberger’s report on improving access to the profession can be implemented. Mr Dutton has set up an implementation and monitoring group to keep the momentum going.



Fifty-year-old Mr Dutton takes a break from his commercial practice at Fountain Court for his leadership year. He grew up in Richmond, North Yorkshire – the son of a schoolteacher and a nurse, and attended Durham Chorister School. He won a music award to Repton School before going up to Keble College, Oxford.



He is passionate about the skills the bar has to offer both here and abroad, and retains much of his youthful idealism and desire for justice. And, as a keen sailor, he will doubtless steer the bar a steady course through the choppy waters of 2008.