Strength to strength

The Bar is facing pressure from several directions. The recession and the attendant budgetary austerity mean that legal aid as a fund is under huge constraint. At the same time, purchasers of legal services are, across the board, seeking increasingly better value for money and are imposing downward pressure on fees. Further, the Bar is facing growing competition from other lawyers in its traditional areas of practice; and amidst all of this the Legal Services Act 2007 is in the process of being implemented.

However, a difficult economic climate is not necessarily a bad environment in which to bring about change. Practitioners are, perhaps, more willing to contemplate radical suggestions if they can see that these might in the longer term improve their position. In this regard, the Bar Standards Board, the regulatory arm of the Bar Council, in November 2009 adopted a series of rule changes designed to give to the Bar a far greater flexibility in the manner in which it practices.

These rule changes contemplate that the Bar be permitted to enter into partnership, to engage in far more 'litigation' than hitherto permitted, to engage in wider direct access in relation to areas of practice such as private family, private crime and private immigration. The changes further address relaxation on barristers practising in dual capacities and on sharing premises with other professionals. Furthermore, the BSB is in the process of consulting, yet again, on further changes including so-called 'entity regulation' and additional direct access. Within a relatively short period of time it is hoped and expected that the Bar will have available to it a far greater flexibility with which to respond to the present economic climate than it has ever had before.

As part of the process of change, I have been travelling around the country meeting members of the Bar. I have visited more then 50 different sets of chambers and spoken to over 2,000 members of the Bar at seminars, conferences and in other forums. There is a powerful appetite for change though not always an appreciation of how this might come about. The views I heard do, however, give an indication of the way forward for the Bar.

Balancing tradition and flexibility

First, there is in fact little interest in partnership. The Bar values and prizes highly its independence. Barristers owe their primary duty to the court and secondarily to clients but do not feel it desirable that they should also owe duties to their colleagues in chambers. Partnerships would also bring with it the highly problematic question of conflicts of interest. Barristers are specialised creatures who regularly appear against colleagues in chambers. This would be put severely at risk were the Bar to routinely enter partnerships. The overall capacity of the Bar to serve the public would be diminished if partnership were the norm. There is hence a strong feeling that the future of the Bar lies with the traditional set of chambers still at its core.

Second, the Bar is acutely conscious of the fact that it is subject to increased competitive pressures. It wants to 'fight back'. A great deal of work has therefore been undertaken in devising new models of practice to confer greater flexibility upon sets of chambers but which preserve the traditional core strengths. The Bar Council has published a model known as the 'ProcureCo'. This contemplates that as an adjunct or bolt-on to a set of chambers a corporate vehicle might be incorporated. This would enable a variety of additional skills to be teamed up with those in the chambers and thereby a vehicle would be created which could bid more easily and effectively for work from large purchasers of legal services, bodies such as local authorities, the Legal Services Commission and other corporate bodies. A number of sets of chambers have already set up their ProcureCo vehicles. For more detail of ProcureCo, visit the Bar Council's website.

Size matters

Third, so far as publicly funded practitioners are concerned, and criminal practitioners in particular, there is an acute need for the Bar to participate in LSC contracting. The starting point is that criminal legal aid, as a pot of money, is a prime target for governmental cuts. This creates an imperative for the MoJ and the LSC to rationalise the allocation of scarce funds in a manner which extracts the greatest efficiencies out of the system. The view of the present administration (this article was drafted prior to the election) is that more money should be allocated to a smaller number of service providers. Size matters. Unless the Bar changes, it risks being squeezed out of the legal aid system. So the Bar must change. Criminal practitioners are in the process of addressing the need for change and our intent is to turn a crisis into an opportunity. The Bar has many virtues to commend it. It is a profession with low overheads and very high quality. It has enormously valuable support machinery for continuing education provided by the Inns of Court, the Circuits and the Specialist Bar Associations. In principle, the government should welcome the participation of the Bar in the continued provision of criminal defence services. It is now up to the Bar to modify its working practices to enable this to happen.

A resilient profession

Fourth, outside the realms of the publicly funded Bar, the civil, commercial and other specialist areas of the Bar have survived the recession tolerably well. This demonstrates that there is a demand for specialist advisory and advocacy services at all times. The Bar is not wholly immune from the recession, but has weathered it well. Conferring upon the Bar greater flexibility should, thereby, place the Bar in an even stronger position as the new vehicles will enable them to exploit new markets and to be stronger in those where they are subject to increased competition.

The Bar faces many challenges, but it is a resilient and resourceful profession and there is a powerful demand for its services. We must ride out the present storm and I am confident that the Bar will, ultimately, emerge all the stronger.