In his inaugural speech before taking over the tiller from Desmond Browne QC as chairman of the bar, Nick Green QC listed three things that have contributed towards creating instability for barristers: legal aid cuts, competition from solicitor-advocates and the ‘ambitious’ expansion into advocacy by the Crown Prosecution Service.He seems to accept competition from solicitor higher court advocates due to the commercial pressures on his solicitor colleagues and their need to do what is required for them to stay in business.
But in relation to the other two issues rocking his boat, there is a definite feeling that the bar has been betrayed.
In respect of legal aid fees, which prior to the Carter reform process had not been increased for a decade, the government told the bar to trust Carter. Despite reservations the bar did that and following negotiations fee were set at a rate that restored parity with inflation, and which the government deemed to be fair.
Two years down the line that agreement has been torn up and the bar is being asked to accept fee cuts of 18% below what the government had previously deemed to be a fair rate. Other public sector workers are being given either a zero pay rise or an increase of between 0-1%, which has left the bar feeling it is being singled out for ‘unfair’ and ‘irrational’ treatment, says Green.
On the possibly even more thorny issue of the CPS, Green had clearly done his homework. In his speech he gave a potted history of the creation of the CPS, quoting from parliamentary debates prior to the Prosecution of Offences Act 1985, which brought the organisation into being.
The CPS, he says, came about following the Royal Commission on Criminal Procedure, chaired by Sir Cyril Phillips, which recommended it to create a separation of functions between the police and the prosecutor, not to engage in advocacy.
The relationship between the bar and the CPS was debated during the passage of the bill, during which the government confirmed the CPS would not engage in advocacy.
Sir Patrick Mathew, the then solicitor general, gave the following assurance: ‘The government holds strongly to the view that the public interest requires the continuance of a strong and independent bar, and that rights of audience in the Crown court shall accordingly continue to be confined as at present to an independent bar which prosecutes and defends.’
CPS statistics show the prosecution authority now performs around 27% by volume and 50% by number of all work in the Crown court and there are no limits to its plans to do more.
Green could well learn a lesson from these two sad little tales that will stand him in good stead as he navigates through his year in office – be careful who you trust, especially if they have a Westminster postcode.
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