Chop and change

Public interest in the Bar of England and Wales has never been greater as it faces the twin challenges of planned cuts in expenditure on legal aid and possible changes in the structure of the profession. The latter may enable publicly funded barristers to participate in new arrangements for the procurement of legal services, and could have wider implications for the profession as a whole.

Public funding cuts

The Ministry of Justice and the Legal Services Commission have done much to talk up the celebrations of the 60th anniversary of legal aid. At the Bar Council we can find little to celebrate: we are in the process of responding to the MoJ's consultation bombshell 'Legal Aid: funding reforms' which was published in August.

The ministry described these cuts as 'efficiency savings'. In fact they are the reverse. The proposed cuts of between 20 and 30 per cent in publicly funded fees will damage efficiency and quality advocacy by driving experienced lawyers out of publicly funded work. If these proposals are carried out, we risk developing a two-tier system of legal representation, depending on the nature of the funding. Put simply, the MoJ cannot afford to do it.

For many people access to justice is provided by the legal aid system. We all recognise the need to spend public funds prudenty, but, to guarantee the proper administration of justice, we need to ensure that high-quality barristers and solicitors are attracted to, and can develop successful careers in, publicly funded work. One needs only to look at the findings of a recent study of the work of the family Bar, by the King's Institute for the Study of Public Policy, to see that proposed cuts to the family budget will result in experienced practitioners leaving publicly funded work, to the detriment of the public, the courts and the clients they seek to serve. These include some of the most vulnerable members of society: abused partners and abused children.

In many respects, the MoJ's consultation paper is a remarkable document, not least because the ministry has failed to carry out any assessment of the impact of their proposed fee cuts. The impact of any proposed policy should be assessed and steps to obviate any adverse impact considered before the adoption and implementation of the proposed policy. In addition to this fundamental omission, the MoJ has failed to define properly the savings it wishes to achieve. Nor has it described clearly the precise proposals on which it is consulting.

The Bar Council and the Law Society are working closely together to marshal effective opposition. For a full account of the steps being undertaken by the Bar Council to fight these cuts, visit www.barcouncil.org.uk.

Future structure of the profession

The background to this issue is the unprecedented pressure for change, brought about by alterations in the market for legal services and in the regulatory framework. In response to the introduction of the Legal Services Act 2007, the Bar Council and the Bar Standards Board have been examining the current restrictions on practice included in the Bar's Code of Conduct to ensure that they serve the public interest. We have to acknowledge that however much the Bar may hanker for a return to its old traditions, the LSA gives the Bar no option but to confront, and seek to manage, change.

The BSB will be taking a final decision in November on a number of fundamental issues. These include:

• whether barristers should be permitted to be managers of LDPs;
• whether barrister-only partnerships should be permitted;
• whether barristers should be permitted to practise through barrister-only companies and LLPs; and
• a decision in principle as to whether the BSB should consult on becoming an entity regulator and, if so, in relation to what sort of entities.

All of these issues have significant implications for the future structure of the self-employed Bar. While the majority of the Bar, for good reasons, have indicated that there is no real appetite for partnerships, the increase in competition from solicitors for advocacy work, an ever-growing number of briefs disappearing in house to the CPS, and changes in the way government procures legal services have forced chambers to consider new ways of doing business.

In the past year, the Bar leadership has been assessing the rapid developments in the market. One idea that has attracted considerable attention is that of barrister-run corporate procurement vehicles. Such vehicles might be used to enter into contracts with major purchasers, such as the LSC. They could also be used to contract with solicitors, who would work in conjunction with barristers, to bid for contracts and thereby enable the provision of a composite litigation and advocacy service. These vehicles, owned or controlled by chambers, represent a development that would not only create a degree of flexibility for the publicly funded Bar, but could also be of value to the rest of the Bar.

A second, related issue concerns 'entity regulation'. Under the LSA, any entity which 'provides legal services' must be regulated. Currently, the BSB does not have the statutory power to regulate entities. This rests exclusively with the Solicitors' Regulation Authority. The Bar accepts that there are some varieties of corporate vehicles that probably would require entity regulation. However, there are several different corporate vehicles which would not involve the direct provision of legal services, and thus could be operated without the need for entity regulation.

There is no denying that the ramifications of these issues are complex and very technical. Nevertheless, whether we like it or not, change is upon us. It is of the utmost importance that the Bar faces the challenges of cuts in public funding and regulatory change head on. That is what the Bar Council is doing on behalf of self-employed as well as employed barristers, to preserve, strengthen and promote the services of the Bar for the future, in the public interest.