Launch of the Bar Standards Board handbook; challenges and opportunities
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Attorney General Dominic Grieve QC MP keynote speech at the launch of new Bar Standards Board handbook
Thank you, Lord Judge, for that kind introduction: it is always a pleasure to share a platform with you. I am delighted that despite your recent freedom from the shackles of judicial office your interest, loyalty and enthusiasm for the Bar remain undimmed.
Your continued interest reflects, I think, what the Bar means to those of us who are, or have been, part of its family. I suspect that all of us here today, who have had the privilege to practice at the Bar, will be able to tell tales both true and apocryphal of the characters they have met at the Bar.
There are those who are eccentric, there are the geniuses, there are those who can hold the attention of the court so you would hear a pin drop and there are those who leave the court collapsed with tears of laughter including the defendant who is shortly to be taken down to the cells, there are some who combine all these attributes – but the one element which is consistent, is the generosity of spirit which one finds in the profession.
There may be those who bend or breach the rules - sharp practitioners who perhaps achieve fleeting success. But that is success tempered by the loss of their integrity and welcome within the fold of the Bar. The Bar, despite its size, remains a close-knit community, wedded to its traditions of public service and representation for all. Those who betray the trust invested in them will eventually fail and that is right and necessary to it continues to be held in respect.
It is therefore essential that we have clear and unambiguous rules. It is equally essential that such rules are easy to follow and easily accessible both to practitioners and the layman. The new Bar Standards Board Handbook is an important step on the road to achieving those ambitions.
I will say more about regulation as I go on. But I also want to look more widely, at some of the challenges facing the Bar, and why despite the challenges I believe the glass is half full and not half empty.
Regulation and QASA
I hesitate to say this at a Bar Standards Board event, but I am not sure the current regulatory structure is universally loved among the profession. And to some extent I can understand why. I believe strongly in the independence of the professions. I do think there is a danger that our regulators could be drawn into over-regulation, or micro-management of the professions. Indeed I said as much to David Edmonds when I met him recently.
On the other hand, I am in no doubt that Sir David Clementi, who reviewed the regulatory framework a decade ago, was right about the need to split regulatory and representative functions. We cannot go back on that. And the regulators are right to emphasise that lawyers’ clients are also their customers, who, like all customers, have a right to expect certain standards, not least an efficient and satisfactory system for dealing with complaints.
Then too it is important to remember that the Legal Services Board is responsible for overseeing not only the Bar Council, the Law Society and the Chartered Institute of Legal Executives, but also seven other Approved Regulators, including those for conveyancers, patent attorneys and notaries.
We are here today to mark an important achievement by one of the legal regulators: the new Bar Standards Board Handbook, which came into force on 6 January. On behalf of the profession, I would like to thank the BSB for it. Some in the profession may not immediately recognise the value of it, but this substantial work of consolidation and updating will ultimately place practitioners in a much stronger position to face the future. As you know, the new Handbook brings together for the first time all the BSB’s regulations into one publication, and in particular incorporates a thorough revision of the Code of Conduct.
I am sure we all welcome this more coherent approach, and the removal of superfluous rules. Some of the changes in the new Handbook will be controversial. But the important thing is that the profession now makes it work, and maintains the professional standards that have now been redefined by its regulator and reflect the changes in our working practices. It is my belief that the changes outlined within the handbook will allow chambers and counsel to branch out into new fields and opportunities, which will immeasurably benefit them and their clients.
Returning to regulation more generally, the Government is keen to reduce burdens on the professions, while ensuring that regulation is appropriate and protects consumers. This ties in with our wider agenda for growth, to which a thriving, competitive, legal sector can contribute, both in the domestic market and overseas.
So, on 5 June last year, the Ministry of Justice began a review of legal services regulation, by issuing a call for evidence. When Justice Ministers have taken a view on the way forward, they will of course be consulting with colleagues, and I will continue to take a keen interest.
I am sure the Justice Secretary would want me to say that this review does not necessarily presage major changes in the statutory framework for regulation, such as the abolition of the Legal Services Board, (though I note that the LSB, by calling for a new, single regulator, to be created “from scratch”, has in effect proposed it’s the bold step of its own abolition!).
Of course, there has also been much said about the introduction of the Quality Assurance Scheme for Advocates (QASA). QASA is a matter for regulators, including the BSB, rather than for government, which is why the Government did not play any part in the judicial review proceedings which concluded on Monday. But I have said on many occasions that I do not think it is possible for any profession to avoid this level of scrutiny today.
I support any process that helps to promote and bolster the high standards of which the criminal Bar is rightly proud, and which weeds out those who are not able to achieve them. For a profession like ours which prides itself on quality, to refuse to be assessed does not strengthen our cause, and indeed is in my view completely counter-productive.
Undoubtedly, as the judgment recognised, there are problems with improvements that can be made to process and implementation, but that is inevitable and certainly not indicative of a fundamental flaw in the principle of assessment.
Lastly on this subject, I have heard many times people’s concerns over ’plea-only’ advocates. I understand those concerns. But these advocates are here to stay. Nor are they really anything new. All of us who have practiced in the Criminal Courts will be familiar from the past with the self-employed barrister who through inclination has limited their practice to pleas and mitigations – not everyone relishes the drama of the trial.
Legal aid / size of the Bar
Let me turn briefly now to another challenge facing the Bar.
While we are seeing welcome signs of economic recovery, Departments – including the Ministry of Justice and my own – are continuing to implement very significant reductions in public expenditure which are necessary to bring the deficit this Government inherited under control. The Government is continuing to make hard choices about expenditure in many deserving areas.
The justice system cannot be exempt. And while there are savings to be made through greater efficiency in the justice system, for example through increasing digitisation and use of video technology, these do not provide complete alternatives to legal aid reform. Even when all the reforms already implemented or currently planned have fully worked through, total legal aid expenditure will still be at £1.5 billion per year.
I would suggest that the crux of the matter though for the future health of the Bar is neither QASA nor legal aid reform, but rather the increasing number of criminal advocates, at a time when the volume of cases available to them is falling. I have made no secret of my view that the number of barristers practising criminal law is too high and that as a profession, the Bar has to focus on how to manage the process of bringing the criminal Bar down to a sustainable size. I know this is not an easy matter but it is not one we can shirk.
Despite recent arguments over statistics, the clear impression is that crime continues to fall: it is down by more than 10% under this Government and is now at its lowest level since records began. Whilst very welcome, this inevitably means there are fewer cases to come to court. Since 2010, Magistrates’ Court proceedings have fallen by 8%, and Crown Court receipts have fallen by 5%. Yet at the same time there has been a steady increase in the number of barristers at the self-employed Bar.
According to the BSB’s ‘Bar Barometer’, total numbers rose in round figures from just over 12100 in 2007 to 12,700 in 2011. Slightly more than a third of practising barristers are engaged in criminal work. This combination of increasing supply but decreasing demand is clearly not sustainable.
The criminal Bar needs to be at a size where it can thrive, allowing both for competition, and for each successful advocate to have enough work to provide an acceptable living. In this context, Sir Bill Jeffrey’s review of the provision of independent criminal advocacy is crucial. The impetus for it is precisely the concern that there are too many criminal advocacy providers given the reducing levels of work, especially that covered by legal aid. The review is as you know considering the experience, skills and future structures that might best support the continuing provision of quality independent advocacy services in England and Wales, in the light of the changes to the legal services market.
I supported the setting up of this review and the professions need to engage constructively with it. I hope it will provide useful options for the way forward.
There are considerable opportunities facing the legal professions. One such has been provided recently by the introduction of alternative business structures (ABSs). The licensing regime for ABSs has been operational for over two years now, and to date over 250 bodies have been listed as such.
By relaxing the historical restrictions on law firm structure and ownership, the ABS concept has opened up the legal services market for lawyers and other professionals to work together in single entities, delivering a mixture of legal and non-legal services in new and innovative ways. This should in turn provide greater commercial certainty, attract external investment into the legal services sector, and help to drive expansion, supporting wider economic growth.
Barristers are of course already playing a role in ABSs. Working creatively and thinking beyond traditional constraints, Chambers and their members can be at the forefront of this advance. Some have viewed these changes with deep misgiving; could this work be carried out while maintaining ethical standards? I believe the Handbook and new Code of Conduct allow this and I would encourage all members of the Bar to examine carefully how best to embrace the new whilst preserving the best of the past, including most importantly our ethical standards. I believe that this greater flexibility should help to maintain and even drive up standards, improving a legal system which is already respected across the globe. We need to continue to take the opportunities provided by this changing market for legal services.
Other opportunities are provided by the UK’s position as a world leader in the provision of such services. Our legal sector was worth £20.4 billion or 1.5% of the UK’s gross domestic product in 2012. And ours is regarded as an ‘export-oriented’ sector which contributed some £4 billion in UK export value and generated a trade surplus of £2.9bn in 2012!
In 2011, Her Majesty the Queen opened the Rolls Building, the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world. This impressive building is both a symbol of, and will enhance, the UK’s global standing in these areas. It should also be seen as a sign of confidence in the continued strength and growth of the legal professions.
I know that Baroness Deech, in a speech to the House of Lords last month, took the Government to task for trumpeting the excellence of the UK as a global legal centre whose success depends on adherence to the rule of law and the quality of its lawyers, but then, as she put it, cutting at the routes of access to justice and the development of lawyers. It is a valid subject for debate. But perhaps today I may be permitted a bit more trumpeting…
In September last year, in Moscow, I attended the annual conference of the International Association of Prosecutors. Again and again in conversation with lawyers from different countries it was apparent to me the high regard in which our courts and legal professions are held. There is an overseas market hungry for those educated and experienced in our system of justice and jurisprudence. There is a demand for the work of our law firms because of the reputation, experience and authority that our legal sector can provide. And in October, I spoke at the Guildhall about ‘The value of the rule of law to international trade and finance’, stressing the central importance to the British economy of the rule of law. I pointed out that the UK is today exporting professional legal services and the ethics and principles which underpin them around the globe. The Government wants to do everything it can to support and boost those efforts.
In that context I note that the first ever UK Global Law Summit, showcasing Britain’s unrivalled legal expertise, will take place in 2015. Bringing together Government, legal professional bodies and business, the Summit will champion the UK as a global leader in legal services and as the destination of choice for global business in the 21st Century. So then, there are new opportunities, domestic and international. But the greatest ‘opportunity’ for the Bar remains that there will always be a demand for advocacy of the highest quality, in all areas of law. The reputation of the Bar will continue to depend on its ethical standards and its professional expertise. Despite the current challenges to which I have referred, and while we must accept that some change is necessary, I see no reason why the Bar should not continue to thrive as it has done for the last seven centuries.