Bar Council chairman talks about plans to combat potentially ‘devastating’ threats

Stability and modernisation are the key themes of Nick Green QC’s tenure as the recently installed chairman of the Bar Council. Stability in respect of the publicly funded bar, and modernisation in so far as the bar must urgently adapt to a ‘fast-moving and changing legal landscape’.

In his inaugural speech as bar leader, Green spoke of the ‘accumulation of storm clouds’ that are darkening the outlook for barristers. Legal aid cuts, the ‘ambitious’ expansion into advocacy of the Crown Prosecution Service, and the growth in competition from solicitor higher court advocates all present serious challenges: ‘The effect of such pressures coming to bear upon the bar at the same time is potentially devastating,’ he stresses.

In the spacious surroundings of Brick Court Chambers, Green vents his spleen over the way the government has behaved over criminal legal aid fee cuts.

The bar is ‘furious’, he says, because after telling the profession to ‘trust Carter’ during the reform process, the government has effectively torn up the recommendations. ‘Carter set a fair rate, and now across the criminal defence profession we’re being asked to accept cuts of 18% below a fair rate,’ he explains.

Green concedes that public spending cuts are inevitable in a recession, but claims the bar has been singled out for ‘unfair treatment’ and ‘irrational’ economies. When others in the public sector face a pay freeze or negligible increase, he emphasises, lawyers at the sharp end of the administration of justice are being forced to stomach a fall in their remuneration of nearly a fifth.

Such cuts are ‘irrational’, he adds, because the government has no evidence of – or seeming interest in – the unintended consequences of ‘squeezing the pips out of defence lawyers’.

‘The bar has a difficult job to do, because selling the notion of the efficient administration of justice is not as alluring as the Florence Nightingale image of the nursing profession,’ says Green. ‘You get the popular press who say the money is paid to people to defend criminals who ought to get banged up.’

The truth, Green says, is that legal aid barristers deal with many of the most vulnerable and dispossessed people in society and it is fundamental to our democracy that they are treated properly and fairly. Unfortunately, he adds, ‘that is not a sexy thing to tell the public – not in the months in the run-up to an election’.

Perhaps as a sign that their patience has run out, the Bar Council and Criminal Bar Association last week instructed solicitors to take the first steps towards judicial review proceedings regarding the Ministry of Justice and Legal Services Commission consultations on fees, on the basis that they are ‘inadequate and unfair’.

CPS expansionAnother headache for Green and his bar colleagues is the CPS and its rapid expansion into the world of advocacy. In the interests of conciliation, however, Green is slightly more diplomatic on this subject. ‘I want to do a deal with the CPS on prosecution work,’ he confirms. To that end, the bar has been participating in a series of confidential discussions with the director of public prosecutions, Keir Starmer QC.

The CPS introduced its strategy to increase in-house advocacy in 2004. According to its annual report, points out Green, in the Crown court the CPS now does around 27% of cases by value and 50% by number. If this expansion continues, he says, there is a risk that the damage to the self-employed bar will be permanent.

‘In our discussions we have to find a way of reconciling the fact of life that the CPS is in the court advocating, and stability for the self-employed bar,’ he adds.

Once that stability is secured, he says, there will be benefits for both sides, such as joint training, secondments and the emergence of ‘revolving doors’ between the CPS and the self-employed bar.

At the moment, however, Green says the bar is ‘psychologically scarred’ and therefore unwilling to help, because barristers ‘see the CPS as just constantly taking away their work’.

For Green, one of the most regrettable consequences of this dispute with the CPS is that it has caused a fracture between the self-employed and the employed bar: ‘Colleagues are falling out with former colleagues and that’s very sad.’

Despite the challenge presented by the success of solicitor higher court advocates, which inevitably also takes work away from the self-employed bar, Green has little to gripe with solicitors about.

‘Bob Heslett [Law Society president] said to me we were disappointingly ad idem on a lot of issues. And we agreed that the Ministry of Justice had succeeded in binding us together in a way that no-one or no other issue has,’ says Green.

The bar chairman believes it will be important for the two branches of the profession to stand together in 2010 on a number of fronts. One important task will be for them to agree on their relationship with the Legal Services Board.

‘The Law Society and the Bar Council are the [approved] regulators, not the LSB. The LSB has a valuable role to facilitate and to encourage, but it is not to take decisions.’

Although he emphasises that he does not intend to cross swords with the LSB if he can help it, he notes: ‘We have to carefully draw the lines of demarcation.’

‘I’ve agreed with David Edmonds [chairman of the LSB] that if we have a real spat we’ll talk about it, as there is no sense in regulators litigating with each other,’ he says good humouredly.

The professions, he says, could also work on a joint approach to raising funds for litigation, following Lord Justice Jackson’s recommendation that success fees and after-the-event insurance premiums should no longer be recoverable from losing defendants in civil cases.

For example, there will be a decline, he says, in access to justice, with personal injury victims unable to get financial support. In his view it is in the legal profession’s interest to try and find alternative ways of raising funds for litigation. He suggests the Law Society and Bar Council could put their heads together and form a working group to look at raising funds in the market place for litigation.

‘We both have an interest in access to justice and in protecting funding for litigation and the profession. If we come forward with sensible, worked-out proposals that we jointly agree on, frankly there’s no reason why a government shouldn’t grab them with open arms.’

Modernisation agendaSurely the most significant development of last year, however, was the Bar Standards Board’s decision to allow barristers to practise in partnership with other barristers or in legal disciplinary practices, subject to the necessary rule changes being approved by the LSB. In this regard Green says he is on a mission to ‘lead our troops into modernisation’.

The bar – and not just the publicly funded bar, parts of the civil bar too – needs greater flexibility, he believes, and barristers need to wake up to the opportunities the new rules will give them should they wish to take advantage.

He is not convinced that many of his colleagues will be keen to go into partnerships, because the conflict rules make it unattractive: ‘Moreover, there is a very strong feeling at the bar that they like being self-employed and independent.’

But there are, he suggests, lots of other things the bar can do. The idea that has gained the most currency recently is that of establishing procurement companies.

‘It’s a very unglamorous name, but it simply means using corporate or commercial vehicles to wed together advocacy, litigation, advisory and other legal skills.’

He explains that procurement companies would be commercial vehicles that would not themselves provide legal services, but rather administer and bid for legal services. They would enable barristers to practise in the traditional chambers model, and set up a separate company with other barristers or solicitors to bid for bulk contracts from volume purchasers of legal services, such as the Legal Services Commission, insurance companies or local authorities.

Such purchasers want to contract for a composite service, covering advice, litigation and advocacy. So if you want to compete for that work you will have to be able to provide all of it, Green explains.

At present barristers are excluded from this bidding process, but a procurement company would provide them with a vehicle through which they could engage and take control.

‘We’ll bid for the work, but we’ll have our own panel of solicitors and we’ll instruct them, not the other way round – you reverse the normal order of things,’ says Green.

Over the last 12 months Green says he has spoken to a large number of barristers around the country and been impressed, and pleasantly surprised, by the thought that many have given to the impact of the Legal Services Act and what it will mean for them.

‘I asked as many as I could for their business plans for the next two or three years. A lot of them said "what on earth are you talking about?", but a surprising number agreed to tell me and had really very detailed blueprints,’ he says.

‘It really surprised me how many sets are really thinking about what they need to do for the future, and have actually sat down and thought about the corporate implications, the tax implications, the employment implications and have ready-made solutions which they will roll out once they are allowed to,’ he adds.

In summary, then, Green is in for a testing stint as the bar’s titular chief. And what of the future? ‘My clients won’t all go away – some of them will come back – I hope. God forbid I might have to go and become a judge,’ he smiles.