The problem concerns legal aid, which accounts for around 30 per cent of the Bar's total turnover. Legally aided work is, however, not uniformly spread. It provides nursery cases on which almost all young barristers cut their teeth, and remains an important source of income for more experienced barristers, especially criminal or family specialists.
Public funding is much less relevant to those who practice in commercial work. The Bar's elite, accustomed to wealthy corporate clients, find an obligation to act at legal aid rates somewhat insulting.
Lord Mackay, the Lord Chancellor, made proposals for reform which brought conflict between different interests at the Bar into the open in the late Eighties. As part of the defence of its monopolies, the Bar played the cab-rank card with vigour. It baited the Law Society about its lack of any equivalent and even lobbied in Parliament for sworn adherence to be a requirement of undertaking advocacy in the higher courts. It was to consolidate its position that the Bar introduced its current code of conduct in 1990.
The negotiation of this code was not problematic. The original draft stated that the cab-rank principle applied to all clients, but another provision required that fees should also be 'appropriate' for the barrister concerned. The potential conflict between these two regulations was specifically addressed by the then chairman of the Bar, Anthony Scrivener QC. After a row at the National Consumer Council, he swung the Bar Council behind a version that clearly imposed an obligation on every barrister to act for a legally aided client.
Lord Alexander's committee describes the resulting obligation as nothing less than an unreal fiction. It argues that a barrister is bound to act for every legally aided client. Therefore, the consciences of those with access to more remunerative work should be relieved of professing an 'unenforced and unenforceable' obligation.
This is a less justifiable position than that advanced by the man responsible for the original draft, David Latham QC. He told the Independent in February 1990: 'There is no way . . . that we felt it was sensible to make barristers vulnerable to the Government saying: 'You have got to take whatever we pay you'.' To this Mr Scrivener answered: 'The level of legal aid remuneration is a matter for the profession, not individual barristers.'
The Bar should think hard before changing its current position. It needs to appreciate the consequences that follow from its dependence on public funds. Individual barristers can thrive without legal aid: the Bar, as an institution, cannot. That gives the Government a better lever with which to impose considerations of public interest rather than professional advantage. The Bar also faces the scrutiny of a new committee advising the Lord Chancellor on its rules of conduct.
The current code of conduct was part of a rather effective campaign by the Bar against the Government's recent legislative assault on its privileges. As a result, solicitors will only slowly breach its monopolies. Nevertheless, the current size and structure of the Bar is threatened.
There is not enough work for many younger members, and in the lower courts, experienced solicitor advocates are proving fierce competition for young and inexperienced barristers. The Bar is in trouble even discounting solicitors' increased rights of audience.
Lord Alexander's committee was established to respond to criticism from the Royal Commission on Criminal Justice. More positively, its job was to maximise the Bar's position in an increasingly competitive market. The Bar needs a good public profile as much as it did when directly threatened with legislation. The notion that the code of conduct was cynically massaged until the heat was off will win it few friends.
The cab-rank rule may be a fiction honoured in the breach rather than the observance, and barristers can usually wriggle out of any obligation they want to avoid, but the point is that the fiction is useful. It allows moral pressure to be brought on some of the Bar's best practitioners to undertake a case that they might otherwise decline.
It may be that barristers should be able to refuse cases in areas of work about which they are ignorant; it should not be professionally correct to opt out of cases just because the litigant is legally aided. To act in such cases should be an obligation that comes with the privileges attendant on practice at the Bar.
Lord Alexander's committee may have been somewhat ill-advised to stir up the relationship between barristers and legal aid. The Legal Aid Board is now monitoring the compliance of solicitors with tough professional standards that it had the muscle to force upon the Law Society. It is only a matter of time before the board plucks up the courage to extend its concerns.
The Bar is on notice that its largest single funder is likely to be scrutinising the terms on which barristers do business. It would be foolish to evacuate any high moral ground unless this was really necessary. Accordingly, the Bar might care to reconsider this recommendation of the committee while accepting others - such as the creation of an effective complaints procedure.
Roger Smith is the director of the Legal Action Group