The Challenges and Opportunities Facing the Bar

Brian Lee, Chairman of the Institute of Barristers’ Clerks talks to myBarrister. 

These are difficult times facing the Bar, aren’t they?

Yes, they are, and we need to put it into context the potential damage that might be caused. Our legal system is the best in the world, from the Lord Chancellor to the judges to the court staff to the lawyers, clerks, short hand writers, ushers, interpreters to the estimated 320,000 who are employed in legal services in England and Wales.  The Bar has absolutely played its part.

But it is important to remember that it is one Bar; it is not split into civil or criminal, public or private. The risk is that it does divide – the private and civil Bar will continue while the criminal and public parts of the Bar wither on the vine.  We must not let that happen.

Are you referring to the reductions in the legal aid budget?

Yes, I am. As clerks, we see the direct consequences.  Access to justice to those in need is being denied.  Costs are increasing as a result of the chaos caused in overruns in the courts from litigants in person. The paradox, and really damaging part, is that the cutbacks in legal aid are entirely unnecessary.

How is that?

The legal aid bill in 2014 was £2 billion, which the government of the day wanted to reduce by £320 million. In 2014, about £160 million was paid to criminal counsel and £137 million paid to civil counsel (figures which do not include disbursements). However, costs of £127 million were recovered in the civil cases and £250 million of confiscation orders were made on the criminal side. Add those figures together and that makes £377 million, which is more than the amount the government wishes to save.  So it doesn’t make sense but the government never tell you of the monies recovered.  The damage comes from reducing the work that publicly funded barristers can take on. The solution is to ring fence the recovered money and reallocate it to the legal aid budget. Another really damaging policy has been to raise court fees, in the case of High Court fees by up to 600 per cent.  

Recently, the Lord Chancellor suggested that the deficit could be made up by barristers and solicitors doing more pro bono work.  Would that help?

I can only speak from my knowledge of the Bar, but what I can say is that barristers already contribute enormously. The number of barristers registered to act under the Bar Pro Bono scheme now totals 3,627, which is an incredible figure for such a small profession. In the year to March 2015, there were 2,400 requests made to the Bar Pro Bono unit for assistance. Last year some 900 junior lawyers attended the 6-day training course organised by the Free Representation Unit, so the bar is doing more than its fair share. Pro Bono work has become much more relevant recently due to the drastic cutbacks in legal aid make by the MOJ. It is though it is being forced onto the legal profession but of course the Bar has responded magnificently.

Another consequence is that you will not get new talented barristers joining the profession for criminal work.  It will simply not be worth it for them.  It costs £18,000 to go on the BPTC course and pupillage is a minimum of £12,000.  If a young barrister is earning £50 a day, which is common in criminal work, how are they ever going to pay off their debts?

Are there any bright spots?

Yes, fortunately there are.  Civil work is booming in some areas for the Bar. The increase in oligarch work, banking disputes, civil fraud and international arbitration are presenting many opportunities for clerks to sell their wares.

That trend to international work has offered big opportunities, at least for some. Many chambers have now set up in Singapore, which gives the Bar critical mass in Asia. As a result, the whole Bar has benefitted from the foresight of clerks and chambers in investing time and money in that region. But we should be cautious. Singapore may now be slowing down in terms of work for arbitration, but we are watching closely to see whether the new Singapore International Commercial Court (SICC) will be a success. Other jurisdictions are providing arbitration facilities and encroaching on London’s territory. London could therefore be missing out, not only in lawyers’ fees but in influence and invisibles. We must ensure that we make the international business community and foreign litigants welcome in London. There should be no criticism of foreigners using our courts.

Is direct access also an area of opportunity for barristers?

The Bar has always been an innovative and competitive profession within which new initiatives are very welcome.  myBarrister uses available technology and other means of communication to encourage more people to contact barristers directly.  The biggest asset of barristers is their expertise in the law.  Disseminating that expertise more widely, and enabling more people to access it easily and efficiently, can only be for the good.

I would encourage more barristers to qualify to do direct access work.  This is a four-hour course run by the Bar Standards Board.  For those at the criminal Bar, direct access work will help to fill the gap – at least to some extent – left by cutbacks in legal aid. Just as importantly, direct access work is helping to change the way barristers approach their work and their clients. For many, it takes them out of their comfort zone, by having to promote themselves and to deal more directly with clients.  I think this is a good thing, and you see those barristers who are responding to the opportunity doing very well for themselves.