Monday Message – 05.10.15
Mark Fenhalls QC
Some of you read these Messages regularly. Others do not. If this is because of the quality of the offering there is probably not much more I can do. But I hope it is more a reflection on the often overwhelming nature of our professional lives and the way in which so much is governed by the daily grind and the next urgent task or deadline.
In the robing room on Friday I confess to being quite surprised as to how many people had not realised that the MoJ had launched a consultation the previous day. Evidently an unexpected email from the CBA on a Thursday is all too easy to overlook. But please do not think I am complaining. It just served as a critical reminder to me of how easy it is for someone deeply immersed in events to forget how others less involved may not notice.
So I have a plea. If you are one of those people who does read this message and thinks that the issues raised are significant – irrespective of my position on them – then please talk to your opponents in court, your colleagues in chambers and in the robing room and draw them in to the debate. As individuals and as Chambers, make your voices heard by responding to the consultation before it closes on 27 November 2015. Some will wish to write individually. Others will wish to contribute to the CBA response. But one way or another we must all participate. It is after all our future at stake.
But before I turn to the substance of the consultation, I should just mention that on Friday we learnt that the MoJ has delayed the announcement of the “TT” contract bids until Thursday 15th October:
“We regret that we will not be able to notify bidders this week about the outcome of the crime duty tender, as previously indicated. We understand the anxiety this could cause bidding organisations and are working hard to finalise the quality assurance required to make sure these important decisions are right. We will now notify all bidders on Thursday 15th October.”
I don’t think that saying “we understand… ” quite captures it. I know if I had been bidding and was waiting on tenterhooks, contemplating the consequences of a failed bid and the need to make people redundant then an announcement like this so late in the day would prompt a number of emotions well beyond “anxiety”. I realise that sympathy from me or anyone else not involved is, at best, cold comfort and there is nothing more I can say which will help.
And so to the Consultation. Before you read any further please put a link in your phone or tablet now. Then next time you are waiting in court for the case ahead of yours to finish, or on the train or tube, or for a jury, you can read and start thinking about the issues which are frankly critical to the health and future of high quality advocacy in this country.
This letter will not provide you with a detailed digest, nor will it suggest answers. My personal views should not influence the debate at this early stage. For now I am going to limit myself to a few (more) introductory comments.
- This is the Government’s Response to the independent Jeffrey Review which was commissioned by the Government, Law Society and Bar Council in September 2013 and which reported in the spring of 2014. Many of the ideas now in the consultation appear to have their genesis in that Review. Ever since the publication of “Jeffrey” the Bar Council (representing all barristers) has been pressing for a formal response. As the Chairman told the last Bar Council meeting that process has unsurprisingly involved submitting ideas. This is not, repeat not, the Bar trying to get one over our sister profession. As we have said many times, the CBA welcomes competition and only asks that it takes place on a level playing field. We all want the public to be served by highly skilled lawyers, be they solicitors or barristers.
- Section 2 – a panel scheme. We have direct experience now of several years of the CPS scheme – the good and the bad. This should better inform each of us as to how a defence equivalent might work. The consultation sets out some thought provoking and interesting ideas which we all need to consider carefully and constructively. Any scheme that is developed must be rigorous about quality and fair to all advocates, whether barrister or solicitor.
- A number of you have written to me since Thursday and asked about the relationship between such a scheme and QASA, which is touched on in section 2.14. The formal stance of the CBA membership about the merits of QASA is well known and for my part I intend to consider the merits of the panel scheme idea in isolation.
- Section 3 addresses the subject of training standards currently being debated amongst the different regulators and is not the subject of consultation.
It is not for the government to prescribe the standards to be applied. It would not, therefore, be appropriate for us to put forward any proposals concerning training or standards but we simply seek to highlight this as an ongoing issue. We would urge the regulators to continue to work together to develop common standards for all advocates, around ethics, financial conduct and quality. Once agreed standards are in place the necessary training to enable aspiring advocates to meet those standards will naturally follow.
- Section 4 turns to the issue of referral fees. Does anyone disagree that the best available advocate should be instructed regardless of the financial interests of the lawyers? Direct or disguised/ indirect payments to secure work must not be tolerated. It is no answer to say that this principle can be compromised because of difficulties faced elsewhere. We will need your account of what malpractice goes on in your area. There may well be regional differences. If we are to stamp out these improper practices you have to tell us what you have seen or heard. Any correspondence sent to me on this subject will be suitably anonymised before any use is made of it. All personal details will remain confidential unless the author permits otherwise.
- Section 5 addresses client choice and draws again on Jeffrey before floating various options and possibilities all of which require careful thought. The views of practitioners are vitally important.
- Section 6 addresses the Impact Assessment and E & D issues. Plainly we will have to think carefully, but at the heart of my concern is the future sustainability of the Bar. Unless we can attract talented advocates from all parts of society and give them a chance to flourish then decades of hard work and progress will be reversed and the profession will once more become the preserve of the upper middle classes. Many of my friends speak (rightly) with no little pride about being the first person from their comprehensive school to go to the Bar. But what was possible 20+ years ago is becoming increasingly daunting and impossible. Unless we do something urgently we will no longer attract and retain people who are not from wealthy families. It seems to me that this consultation might be a very valuable contribution to this process.
Two last things to mention. The Bar Conference 2015 is upon us on October 17th. I will be running one of the morning sessions (11am-12:30pm) with Daniel Sternberg, Chair of the Young Barristers Committee of the Bar Council. It is entitled: Securing the future of the Criminal Advocate. We will cover amongst other things the topics and issues raised by this Consultation. If you have never attended the Bar Conference before it might be time to try.
Finally can I draw your attention to an exhibition now running at the Royal Festival Hall run by the Koestler Trust. Some of you will already know its work as a long standing and renowned prison arts charity. The free exhibition opened last week and runs until the end of November.
Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]