Barristers: a law unto themselves

In fighting to preserve its courtroom monopoly, the Bar stands firmly in the way of needed reforms
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The Independent Online
Behind the scenes a bloody battle is taking place between two arms of the law - solicitors versus barristers. The Bar sees it as a fight for its very survival, while solicitors see themselves as a David fighting a Goliath of restrictive practice. This time, at least, right is on the side of the solicitors. Backed by the Director-General of Fair Trading, they are seeking to put an end to the barristers' monopoly of representing clients in higher courts. They want "employed" barristers and solicitors to have equal rights of audience.

Examples of current practice: a specialist solicitor beavering away in the fire regulations department devotes his whole life to prosecuting restaurants and offices. A boring job, perhaps, but he knows his onions like no one else. He can appear in the magistrates' court as prosecutor, but when it comes to an appeal he has to brief a private barrister who probably knows next to nothing about fire regulations. He is unlikely even to speak to the barrister who takes over. Even if he does, there is a 50-50 chance that some other barrister will turn up in court on the day.

If the fate of the fire regulator does not impress, look at the Crown Prosecution Service, which is the main bone of contention, as it employs 650 barristers and 1,750 solicitors, none of whom can appear in any higher court. A CPS lawyer, possibly herself a barrister, makes the crucial decision to prosecute, draws up the brief, selects witnesses and shapes the case. But if it goes to jury, she has to hand it over to some unknown, unnamed and unseen barrister, who has to start at the very beginning. The CPS spends pounds 70m a year on employing private barristers. CPS lawyers cannot even turn up in court to read out a pro forma prosecution where the defendant is pleading guilty.

Next example: a highly complex case is prepared by a company's lawyers, the American MD flies in to discuss it with his in-house lawyers, but he is dumbfounded when told that his own lawyers cannot take the case to court. An outside barrister will have to be briefed and the company may not even know which barrister will be available on the day.

However, the Bar Council is fighting to hold on to this monopoly and it looks almost certain to succeed. Until now, using all its well-honed delaying, filibustering and heel-dragging techniques, it has caused six years to pass since Parliament voted for reform of this archaic system. In 1990, Parliament wisely passed the Courts and Legal Services Act to find "new and better ways" of providing legal services, which included letting more solicitors appear in court. A committee was set up to advise and, although much delayed by barristers' rearguard action, finally reported last autumn. (It was split down the middle until the chairman, a judge and therefore a barrister, threw his casting vote with the barristers, to the fury of the solicitors.)

Since then, the four senior judges and the Lord Chancellor have been deliberating (very slowly). Each one of them has a veto on reform, so it will take just one to refuse for it to fall. Last week, the Independent revealed that Lord Taylor, the Lord Chief Justice, is strongly defending barristers' exclusive rights. That means the judges will probably overrule Parliament's clear intent to widen rights of audience. "Their blocking of the will of Parliament to make this reform is little short of a public scandal," says Walter Merricks of the Law Society.

The former chairman of the Bar, Peter Goldsmith QC, as you would expect, makes a fine fist of defending barristers. "Though I suppose," he said a trifle wearily, "you may be minded to accuse the Bar of defending restrictive practices?" He talked loftily of the need for checks and balances in a democratic society, while I tried to put aside baser thoughts of barristers' cheques and bank balances.

"The citizen needs protection against the over-mighty state," he said. "The more serious cases need an independent mind as a safeguard against abuse." It is, he said, a matter of independence and integrity. I tried not to think of the integrity of the independent barristers' minds who prosecuted the Guildford Four and Judith Ward or who argued in court that the Matrix Churchill defendants had no right of access to crucial government documents.

In reality, all barristers and solicitors are employed, whether by the day on the taxi rank, or by annual salary. Their independence of mind resides within their own integrity. As David Pannick QC has written, there are plenty of employed lawyers who spend their time telling their employers unwelcome legal truths, while some other "independent" barristers may earn their money telling clients what they want to hear.

I am not a conspiracy theorist, but the conspiracy of the Bar is in the very air of government, an instinctive breathing together of the fraternity in high places. Who would gain most by letting employed lawyers into court? The Treasury would save millions in all government departments that employ lawyers. But where is the voice of the Chancellor, Kenneth Clarke QC? The Home Office has a keen interest, but the voice of Michael Howard QC is also silent. The Attorney General, as head of the CPS, should be keenly interested. He has said not a word, but then he is also ex-officio Leader of the Bar. Even the Solicitor-General is a barrister, again strangely silent. Every permanent secretary of the Lord Chancellor's Department has always been a lawyer. Barbara Mills QC, the Director of Public Prosecutions, who stands to gain most in her budget, is a barrister and hardly conspicuous for her public protest in this matter.

In the Commons there are 29 solicitors overpowered by 54 barristers. If we had a tradition that all health ministers should be doctors, would we ever have had any NHS reform unfavourable to doctors?

This is a modest reform, designed to make run of the mill cases faster and cheaper. The brightest and best specialist freelance advocates, the Carmans, Lesters, Mansells, Kennedys and Scriveners, will always be in hot demand. But why can the market not be left to operate freely? Why do barristers feel the need for special protection, denying clients the right to choose who shall represent them, in which courts and at what price?

The judges will have to pronounce soon. They look as if they will vote to protect their own. If so, will an incoming Labour prime minister, married to a QC, promise to break the iron grip of the Bar?

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