The government’s consultation on criminal advocacy is a rare beacon of hope for barristers working in the sector, the chair of the Criminal Bar Association told this year’s Bar Conference.
For years, the bar has watched its workbase be eroded by law firms using solicitor-advocates to do a greater proportion of work, Mark Fenhalls QC (pictured) told delegates.
‘Over the last 20-odd years I have been in practice, every single person has said “you should have been here last year as things were much better”,’ he reflected.
But the 23 Essex Street barrister said the Ministry of Justice’s proposals to enhance the quality of advocacy in the criminal courts could mark a ‘turning point’ for the criminal bar.
As part of a consultation that opened earlier this month, the MoJ is considering restricting litigators from instructing advocates within the same firm. This would prevent a conflict of interest when litigators advise clients on the choice of advocate, it suggested.
‘We have a lord chancellor who is a meritocrat and who cares about quality,’ he said. ‘And that means this is an opportunity for the bar to show what we can do, [though] not at the expense of the solicitor profession.
‘The bar has got no place and will not survive unless we adhere to our unique selling point, which is quality. It is the only way we have a future. It is all we can aspire to and aim for as we seek to justify our existence.’
Fenhalls praised plans to introduce stronger measures to ensure clients could make an informed choice of advocate based on impartial advice.
‘I am not saying that solicitor-advocates shouldn’t do their work,’ he said. ‘I just want every client out there to know what is available to them and be able to make a free and informed choice about the advocate that they are using.
‘It is critical we all grasp this opportunity, otherwise we might as well forget it.’
Fenhalls also alluded to government proposals to introduce a panel scheme for publicly funded criminal defence advocacy. He said that although this was an idea that might have been dismissed three or four years ago, it should now be welcomed as barristers can ‘no longer rely on reputation alone’.
‘The market has been destroyed by financial interest and we need the panel scheme to compensate for that,’ he said.
Meanwhile, the author of a government-commissioned report on criminal advocacy warned of a ‘bleak but plausible’ scenario where an increasing amount of work is done by solicitor-advocates and fewer talented people join the bar.
Sir Bill Jeffrey, whose report was published in May 2014, told the conference that one obstacle facing the sector is its conservatism. ‘The bar’s great strength is that it is a loose association of self-employed barristers,’ he said. ‘But it is not a model that allows barristers to quickly decide to adopt a different model.’
He also warned that the criminal bar could see fewer and fewer entrants, which risks cutting off the pipeline of talented people becoming judges.
Speaking at the same session, bar chair Alistair MacDonald QC said the bar must ‘take control of its own destiny’.
One thing the bar should certainly consider doing is direct access work in the magistrates’ court, he said. ‘It is straightforward and doesn’t need a solicitor or litigation. It is work that needs advocacy,’ he said.
CBA chair Fenhalls also called for the bar’s vocational training course to be scrapped in favour of two-year pupillages. He said one of the major challenges facing the criminal bar is attracting and retaining talent.
To help ease the burden of student debt, he believes the Bar Professional Training Course should be axed in favour of on-the-job training.
‘What on earth is the point of the BPTC as a course at all?’ he asked. ‘Why on earth do we have a vocational course that costs students £18,000?’
He said this issue was a massive problem for the publicly funded bar: ‘We can’t keep persuading talented young men and women to come to the bar saddled with thousands of pounds of debt when they could get better paid jobs elsewhere.’
Alluding to the sale of the University of Law to international education and training provider Global University Systems, he said that bar students are being treated as a product and their education as a money-making exercise.
The Bar Standards Board has proposed to reform training in a consultation which closes on 30 October. Vanessa Davies, director general of the Bar Standards Board, said the regulator remains open minded about how the training process can be modernised.