The real threat to the survival of the Bar comes not from two tier contracts, nor from the current fee cuts to solicitors but the risk that for whatever reason, solicitors feel compelled to keep more work in house and stop instructing the Bar. For reasons that I set out below, I consider that most of these instructions would not go to employed in house counsel/HCAs but to consultants who pay a referral fee to receive such work. The Bar, which cannot pay referral fees, will forever be the loser in such a competition. We risk moving towards a situation where clients are appointed advocates not by reason of merit, but by reason of financial interest. This position can only be changed through engaging with Government to put in force a set of regulations prohibiting this, or possibly a common code of conduct for those exercising higher rights of audience outlawing it. This would level the playing field and allow competition for work to be on merit alone.
Government is currently engaging on these issues. Issues which if addressed, could ensure the long term survival of the Bar. The proposed action would put an end to such engagement. That, in short, is why I do not believe now is the right time to move to action. Allow me to explain in a little more detail.
1. Two tier contracts would be bad for the Criminal Justice System, be bad for solicitors and should solicitors attempt to mitigate some of the cuts inherent in the two tier scheme by keeping a proportion of the advocacy fee ‘in house’, it will be bad for the Bar.
2. The current 8.75% cut will be bad for solicitors. If solicitors firms cannot sustain the cut, leading to their closure, it will be bad for the Criminal Justice System. Should solicitors try to keep more of the advocacy work ‘in house’ to set-off these cuts, it will be bad for the Bar.
I state the above as propositions but there can be little doubt that they are facts. I have yet to hear argument from any barrister who believes that either the cuts or two tier will be other than damaging to the Bar. Recognising and accepting these two propositions leads some to conclude that the Bar must fight in opposition to both the cuts and two tier. They would argue that this is not simply the solicitors battle but also the Bar’s as it will be the Bar which suffers if either the cuts remain, or two tier gets introduced. Although in one sense true, that argument fails to recognise what I consider to be the true threat here.
The damage to the Bar envisaged in each of the two propositions arises out of a common factor. That which is said to cause the damage to the Bar is the risk that solicitors, under financial pressure, will choose to keep work in house so as to keep a proportion of the advocacy fee. That the same risk to the Bar arises with respect to both the cuts and to two tier also demonstrates what the real threat is. The threat to the Bar is not two tier or cuts per se, but a system where the Bar’s survival is inextricably linked to and held hostage to fortune by the financial viability those who instruct us. Whether the threat to solicitors arises out of the current cuts, two tier or some future change to their fee structure, the bar will always be faced with the argument, “this impacts on our financial viability, we must keep more of the work in house”.
Would solicitors keep the work in house?
It is worth examining this question in a little detail. If solicitors choose to employ huge numbers of the junior Bar, to deal with more advocacy in house then the Bar will change. True it is that without a thriving junior Bar, trained properly in pupillage and gaining experience in the lower courts, the senior Bar will die out and risk withering on the vine. But will solicitors employ so many more people to keep work in house? In my view they will not.
To employ someone in house costs. It costs by paying tax, NI, holiday pay, benefits, maternity/paternity etc. Post-Carter we saw a large intake into solicitors firms of in house counsel. In recent years my experience and I’m sure many of yours too, is that previously employed in house counsel were let go and are now engaged as freelancers, or consultants. The reason for this is obvious. Firstly, it is cheaper. One no longer needs to pay pesky tax or benefits. The second point is more concerning. It is that many firms oblige their consultants to pay a % of the advocacy fee back to the solicitors. This is in essence, a referral fee by any other name.
I do not criticise the solicitors for offering work in order to get kick-backs. It is lawful. It is condoned by the SRA. For the same reasons I do not criticise HCAs for paying referral fees. Some argue it is akin to paying for chambers expenses. That is simply not accurate, but times are tough and their Regulator says it is a lawful method of obtaining work. I also do not say that it makes any such HCA incompetent. There are many good ones. It does present a problem though. How is a barrister engaged in independent practice meant to compete with an HCA who pays a 40% kick back to receive the work? The risk is that people get instructed as a result of financial incentive and not on the basis of competence. It is this, which I criticise.
I do not believe that these cuts or two tier will see a massive move to employ in house counsel. I do believe these threats will see a greater use of such consultants and it is this which is the real threat to the Bar. An uneven playing field, which the Bar cannot compete on and which will lead to the death of the Bar.
I have yet to understand how it is that a barrister, bound by the code of conduct has a different set of ethical rules than an HCA engaged to represent a co-defendant in the same trial. For one, referral fees are prohibited. For the other, they are permitted. Should there not be a single code of conduct which applies to those who exercise higher rights of audience? Why should the route by which one was trained impact upon the manner in which one is permitted to behave.
In my view these cuts, or two tier, risk seeing an acceleration of the employment of such consultants. The answer is not simply by defeating these schemes, welcome though that would be, for as long as the future of the Bar is linked to the financial viability of the solicitors, the Bar remains in peril. I would like to see a common code of conduct, as outlined above, or legislation/regulation to outlaw referral fees. I would like to see the choice of advocate made simply on the issue of merit and not based on financial reward. These goals can only be realistically achieved through engagement with a Government which cares about the future of the independent Bar. Thus far, this Government and the current Lord Chancellor do appear to care.
None of what I have said is, or should be construed as being an attack on solicitors. They are our lifeblood. They provide a difficult service and work hard doing so. I would welcome the removal of two tier which could be achieved if sufficient solicitors withdrew their tenders. I would welcome the removal of these cuts, which pose the immediate danger although not the real threat. I do not believe this is the battle for the Bar to go to war on though. The real threat as I see it to the Bar, being the uneven playing field, can only be changed through engaging with Government. We are currently engaging with Government. Whether it is able to result in a levelling of the playing field remains to be seen but I for one would not propose going to war over a secondary issue when the real fight for bars survival is still afoot.
Richard Bentwood
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