Lifting the bar to progress

Direct access and the future of the QC system are the two burning issues set to preoccupy barristers at their forthcoming annual conference.

But will they take the leap to update their profession? Asks Michael Gerrard

Barristers gather in London at the end of this month for their annual conference and come face to face with the concept of modernisation for their venerable profession.

The leaders of the bar are keen that the event, entitled 'The Next Generation - Balancing Change with Justice', will show that they are not incapable of living in the 21st century.

As current Bar Council Chairman David Bean QC puts it: 'We are advocates and advisors to our clients, not Dickensian figures in pinstripes.

Rather, we are a modern, efficient and forward-looking high-quality service provider.'

In recent years, the bar has been subject to forces of change both internally and externally- most notably from the government's recently published criminal justice White Paper, and the Office of Fair Trading (OFT), which produced a report into competition in the professions that has been turned into a consultation paper by the Lord Chancellor's Department.

Both are sure to be at the forefront of the minds of delegates to the London conference and their views on the subject - sure to be aired - could provide their Bar Council representatives with much food for thought.

The conference will also highlight subjects such as freedom of speech and access to information, pro bono work, human rights in relation to the war against terrorism, and the European arrest warrant.

But despite the worthiness of such topics, it is hard to stray far from the implications of the OFT report into anti-competitive practices within the professions, which came out early last year.

It questioned several of the bar's age-old practices, including its status as a referral profession and the appointment of senior advocates as Queen's Counsel.

It recommended an end to many of the profession's regulatory practices.

But in its update published in May, one year after the report, the OFT was not overly impressed with the progress made by the bar.

The bar had ended its ban on comparative advertising of fees, and was moving towards reform of the restrictions on direct access.

In addition, the OFT was won over by the bar's argument that the ban on comparative advertising of success rates - which it had originally advocated abolishing - should remain as it was impossible and arguably dangerous to relate success and failure to winning and losing cases.

But on three larger issues, the OFT was not happy.

It was not persuaded by the bar that withholding the right to conduct litigation should remain, saying: 'We intend to pursue this further.' It was also unconvinced by the bar's call to retain the ban on barristers forming partnerships with other barristers or join multi-disciplinary partnerships (MDPs).

Finally, it strongly attacked the whole rationale of the QC system.

The good news for the bar is that in its consultation, the government has largely ignored the issue of conducting litigation and only addresses MDPs in terms of solicitors being involved.

However, despite the Lord Chancellor's apparent support for the QC system, this is open for debate.

While the OFT was generally content with the progress being made on reforming direct access, it may have been less pleased by the news last month that the plans have been watered down (see [2002] Gazette, 22 August, 3).

The bar said it would now like to see a 'cautious' relaxation of the rule, applying only to the areas of family and criminal work.

This would be 'notably for advice and in a very few court matters where at present it is clear that the additional role of the solicitor is not necessary in the interests of the client'.

It specifically ruled out direct access in immigration cases.

It originally backed direct access across the board in contested cases where the facts were straightforward, where the issue was one of law or interpretation of a document, and for some simple guilty pleas and appeals (see [2002] Gazette, 7 February, 1).

The changes are expected to come into effect next year, subject to the Lord Chancellor's approval.

At the moment, only membership organisations have direct access through the Bar Direct scheme, although the number of cases coming through the scheme as a proportion of the bar's work is said to be tiny.

The news was welcomed by solicitors, but the Bar Council denies any suggestions of a u-turn.

However, it does concede that it came under some external pressures.

Mr Bean notes: 'The Legal Services Commission thought that, for instance, barristers should not be attending clients in the police station and would not fund it.

'But it's not right to say there has been a change in relation to crime and family or a dilution to our plans.

We have merely decided to proceed cautiously with them.'

Others point out that in both categories there is often a high degree of litigation work and evidence gathering, which would put it beyond the initial restrictions anyway.

The more one looks into the subject, it appears there is little for solicitors to fear from direct access to the bar.

Guy Mansfield QC, who led the working party that produced the latest proposals, admits: 'In general, barristers are being very cautious, because they don't have the ability to do all that solicitors are doing.'

He adds that to try and ape solicitors would dent a barrister's price competitiveness.

Solicitors seemed fairly relaxed about the challenge, broadly welcoming the competition.

Michael Caplan QC, chairman of the Solicitors Association of Higher Court Advocates (SAHCA), heads a movement that now numbers some 1,300 members.

He says: 'I have no difficulty if barristers think they can offer direct access.

After all, they have had to accept ever-increasing numbers of solicitor-advocates and have seen no difficulty in us working together.'

However, less equanimity exists on the future of the QC system.

The Bar Council stoutly defends its traditional selection process and takes comfort from the fact that in its consultation paper, the LCD alludes to it as 'a mark of quality and distinction in relation to legal expertise and experience including advocacy'.

The paper adds that the silk system is an internationally recognised quality mark and therefore a useful guide to less-informed users of the bar.

Mr Bean notes: 'We are clear that the silk system does operate in the public interest and the report makes it clear that there is no evidence that it does not.'

The OFT, by contrast, found that government involvement in distinguishing between junior barristers and QCs has no parallel in other markets.

It also questioned the operation of the system as a quality mark owing to the way it is awarded.

'Moreover, we remain concerned that the QC system may operate to distort competition,' it said in May.

'One sign of this is the step-change in fees that QCs are said to command upon taking silk.'

Some solicitors agree that the QC system is an unnecessary relic of the past.

Mark Humphries, head of advocacy at City giant Linklaters and a former SAHCA chairman, maintains that in today's world the public and solicitors have sufficient savvy to decide on who is a quality counsel, as they do in other jurisdictions.

He said: 'In America, do people have difficulty in finding the right advocate for the job? No, because of directories, reputation and word of mouth.

You don't have a closed shop deciding on a percentage of the profession as people needed for big cases.'

In an effort at a pre-emptive strike, the Bar Council has appointed a committee chaired by Sir Iain Glidewell to review the system of how QCs are appointed, the so-called secret soundings process which the Law Society has boycotted in protest.

It is scheduled to report by the end of this year.

At around the same time, those engaged in criminal work will probably be mulling over the details of a new criminal justice Bill, following on from the publication of the White Paper in July (see [2002] Gazette, 25 July, 11), which in turn was inspired by Lord Justice Auld's report into the subject.

This report was deeply unpopular for several of its recommendations and the bar, together with solicitors, appears encouraged that some of his more controversial proposals did not make it on to the White Paper.

Top of these ditched proposals were those to restrict jury trials and the establishment in their place of district courts made up of a stipendiary magistrate and two lay magistrates.

But proposals to limit jury trial in a more limited capacity, such as those involving complex fraud cases remain, as do those regarding the end of double jeopardy and the announcement of a defendant's previous convictions.

Unsurprisingly, the bar has convened another working party to review the proposals and lobby the government.

Its chairman, Matthias Kelly QC, says: 'We will continue to oppose the erosion of the role of juries in the justice system, including for long and complex cases and fraud trials, where people are well able to grasp the issue of dishonesty, which is at stake.

'We all want to improve public confidence in the justice system.

The fact is that people trust juries and ministers must trust the people.'

These have not been easy years for the bar: on top of these issues, there has been Crown Prosecution Service advocacy, a push for greater recognition of the employed bar, legal aid pay squeezes and the ever-looming threat of fusion.

All in all, there should be quite a lot to talk about later this month.

Michael Gerrard is a freelance journalist