The determined diplomat

The new chairman of the Bar Council, Matthias Kelly QC, bites back at claims that legal opposition to the government's criminal justice proposals is fuelled by self-interest, while putting forward radical regulation measures and fighting university top-up fees, reports Jeremy Fleming

Matthias Kelly QC has made a bold and very high-profile start as chairman of the Bar Council, lambasting the government's Criminal Justice Bill in his inaugural speech to the bar - 'The public did not vote to abolish jury trial and to create miscarriages of justice,' he said.

But the government has already made clear that it is effectively spoiling for a fight with lawyers, whose opposition it ascribes to self-interest.

Mr Kelly, a 48-year-old personal injury specialist based at Old Square Chambers in London, says: 'That self-interest charge has no substance.

Take the proposed abolition of the double jeopardy rule.

If the legal profession was arguing self-interestedly, it would call for it to be scrapped, so that cases could be tried again and again.'

A democracy, he says, is meant to be a place for debate: 'Abuse is no substitute for debate, and the government should be aware of that, as there are many areas where we have agreed with their proposals and provided useful input.'

Mr Kelly, who grew up in Northern Ireland and qualified both at home and in the Republic, as well as in New York, indicates that he could bruise back in the scrap ahead.

'It may come as a shock to the executive to find that the function of Parliament is to examine legislation, and I know there are Labour, Tory and Liberal Democrat MPs who will do just that.'

Nearer home, Mr Kelly is no radical on the QC system - he took silk in 1999, 20 years after being called in England and Wales.

'QC relates to excellence as an advocate, and I've no problem with anyone being appointed to the ranks of QC,' he says.

And on the issue of the government's control of selection for QCs, he asks: 'Who else is going to do it?'

He says he has 'not given any thought' to suggestions that other non-litigators should receive similar badges of distinction.

Likewise, he maintains that the December 1999 report by Sir Leonard Peach into judicial appointments largely endorsed the probity of the current system.

Issues of direct access to clients and access to the profession loom larger for most barristers, however.

On direct access, Mr Kelly says the bar intends to widen it and implement the provisions it made in response to the Office of Fair Trading's report into competition in the professions.

This would see limited relaxation of the rule in restricted areas of family and criminal work.

But it will go no further, he says, and barristers will not offer litigation services direct to clients.

He is firm on this: 'The difference between the bar and solicitors is a functional one - the solicitor performs one function and the barrister performs another.'

It comes as no surprise that he rejects the argument for fusion between the professions, for the same reason.

But Mr Kelly does subscribe to some radical ideas, such as the proposal that all advocates - including solicitor-advocates - should be regulated by the Bar Council, and all non-advocates, including barristers working in law firms, by the Law Society.

He says: 'Personally, I would have thought that that is a logical position.

The present position is that the Bar Council regulates all barristers, even those employed in solicitors' offices, in the same way as the Law Society regulates sole practitioner solicitor-advocates.'

Mr Kelly insists that this idea is not a reaction to the recent BDO Stoy Hayward survey of the bar (see [2002] Gazette, 21 November, 6) indicating that solicitor-advocates are deemed by barristers to be their greatest competition.

Is this just a case of keeping your enemies close?

'Who actually regulates the profession has got nothing whatever to do with competition.

Just as at the bar, at present, we have up to 10,000 barristers competing against each other.'

But he acknowledges that he does not have a blueprint to take this proposal forward, and that some serious issues would need to be addressed - one being that solicitor-advocates are allowed to offer their litigation services direct to the public.

So this would conflict with the bar's direct access policy.

In his inaugural speech, Mr Kelly also spoke passionately against the government's proposals for university top-up fees.

He says: 'Access to the professions is an issue for all professions.

It goes across every single profession and every single occupational group which draws its new recruits from the ranks of university graduates...

My starting point is that grants and tuition fees being paid by the state was an extremely good idea - enabling access to the children of families of modest means - and that is one of the points that concerns me about access at that stage.'

But poverty further down the line also plagues junior barristers.

The Stoy Hayward report found that 94% of young barristers have debts and 57% say it will take more than three years to clear them.

Furthermore, the Bar Council recently rejected proposals, put forward in a report by former cabinet secretary Sir Robin Mountfield, for all barristers to pay a levy to alleviate the financial conditions of pupils.

Mr Kelly says: 'Where people emerge from university and then want to go for a further period of training, that too is an issue, particularly when that is relatively expensive.'

Mr Kelly has now ordered a further report into the situation by the Director of Public Prosecutions, David Calvert-Smith QC, saying: 'The status quo will not do.'

So is he going to try and ram the Mountfield proposal home? Here diplomacy gets the better of him.

'I am not prescribing anything for the bar.

I'm certainly not saying that the bar has to implement the Mountfield proposal.

Mountfield was one proposal.

The Calvert-Smith inquiry will look at all the range of options.

I'm not ruling anything in and I'm not ruling anything out.

'It would be utterly wrong of me to prescribe to a working party of that calibre what they should and should not look at.

They are going to form their own view and I'm not going to interfere.

They may come up with one proposal they may come up with 20.'

Younger and prospective members of the bar will be hoping that Mr Kelly's diplomacy belies serious determination.