Elizabeth Robson Taylor of Richmond Green Chambers finds lots to talk about… from Magna Carta and human rights to the scandal of ‘referral fees’
So much to do, so little time! It would not be unfair to say that the 30th Bar Conference held at the Westminster Park Plaza, London on 17th October 2015 presented delegates with a rich and almost overwhelmingly varied feast of inspirational and certainly informative events all in one day. But which to choose?
In addition to the speeches — and really quite riveting they were too — there were no less than twenty-two breakout seminars, referred to as ‘specialist sessions’ which covered a wide and just possibly bewildering range of topics, from litigants in person and McKenzie friends, to surveillance and privacy, to new business and new developments, right though to the pleasures and the pitfalls of public access.
But more about all this later. Suffice to say that whatever the topic, the general theme of the Conference centred round ‘our role as advocates in the balance between citizen and state’ as introduced in the opening remarks by the Conference Chairman, Kama Melly of Park Square Barristers.
There were two anniversaries noted and alluded to. One was the thirtieth anniversary of the Conference itself. The other — speaking of the balance between citizen and state — was the 800th anniversary of Magna Carta, sealed, (not signed) by an illiterate, reluctant and surly King John. Now there’s a document with an amazing degree of in-built survivability.
Despite being rescinded a month after it was sealed at Runnymede and then, over the centuries, variously ignored, scorned, challenged, belittled and vilified, Magna Carta has attained almost mythic status among those who are rather fond of freedom and love the law, as it correspondingly strikes terror in the hearts of despots and dictators everywhere. If you want a very recent example, recall that Chinese government declared the Great Charter to be too ‘sensitive’ to be displayed via a touring exhibition to the general public.
So it was rather cheering to sit in among several hundred barristers in the main hall at the Westminster Park Plaza on a sunny morning back in October and listen to the laudatory remarks about the Great Charter made by Bar Council Chairman, Alistair MacDonald QC in his opening keynote address.
‘In this Magna Carta year,’ he said, ‘we remember that the Great Charter has underpinned our legal thinking for 800 years and played a major part in the formulation of the idea of a constitutional monarch, represented for centuries by the Crown in Parliament… and as a result of it, we have had the benefit of living in a remarkably stable society.’
That stability, combined with ‘a quite astonishing flexibility’ engendered by our proud history of jury trial and the common law has, in Alistair MacDonald’s view, ‘helped us maintain our position as a global financial centre against the stiffest competition’. He added that a vibrant legal infrastructure, admired and emulated in a number of other countries is ‘a vital component of our continued success’.
‘But — there is also universal concern abroad about the direction in which our justice system is heading,’ he continued, citing ‘a number of issues across the fields of criminal and civil law which are having a damaging effect upon access to justice, fairness in civil society and our standing worldwide.’
Referring to the worrying diminution of legal aid and its attendant effects on a number of areas, including professional ethics, as well as access to justice for the lay client, he spoke of the ‘misalignment; in which justice is viewed as an optional extra.’ Discussing the public interest in general and pro bono in particular, he pronounced pro bono as ‘a fine contribution to society, but… no substitute for a properly funded legal aid system.’
Referral Fees: ‘like drug cheats in sport’
The highlight of his speech however, for many a beleaguered barrister, was an exhilaratingly fierce condemnation of ‘referral fees’ deceitfully termed ‘administration fees’ by many an opportunist solicitor. (We know who a lot of you are.)
Commenting on the announcement from the Ministry of Justice that it would seek to crack down hard on referral fees, Alistair MacDonald called for a complete ban on all such fees paid to instructing solicitors by advocates. (We are getting to know who you are too.) ‘Like the drug cheats in sport,’ he said, ‘…there are no depths to the ingenuous and ingenious means by which the cheats would seek to dress up their referral fees.’
Well received by the assembled delegates, (as you can imagine) the matter of referral fees turned out to be one of the hotter topics of the day, together with a lot of other vexed questions relating to remuneration and the acquisition of new business.
You might have assumed at this stage that the Chairman’s speech would be a hard act to follow. If so, you might not have reckoned on the incandescent effect of the address by the next speaker, Baroness Helena Kennedy of the Shaws QC — who is a bit of a polymath in the realm of the law, being an author and broadcaster as well as a lawyer. Having practised at the Bar for 40 years, she has conducted many high profile cases, from The Balcombe Street siege and the Brighton bombing to the recent Jihadist fertilizer bomb plot. Along the way she has acquired a dazzling array of honours, including 38 honorary doctorates, and is an Honorary Fellow of the British Academy and the Royal Society of Edinburgh.
An outspoken and stunningly effective champion of human rights (which do include women’s rights, don’t you know), Baroness Kennedy spoke briefly of her rise to prominence, from a Glaswegian working class background, in what only a few years ago, was a predominately male profession. ‘I love the law….I love the Bar,’ she said – and like a number other speakers throughout the day, paid tribute to the pre-eminence of the English Bar worldwide and the universally respected integrity of the British courts, declaring that ‘other systems don’t measure up,’ particularly those overlain by religious violence.
‘Independent lawyers and judges are the bulwarks of our system’, she continued, before moving on to related topics and viewing with alarm the current risks of ‘de-professionalizing our profession’ inherent in the current state of affairs in which access to justice is restricted for those unable to afford representation — and in which so many barristers are tending to ‘migrate’ from such areas as family and criminal law. ‘Access to justice,’ she pointed out
‘is at the heart of the rule of law,’ Referring to legal education and the expense and difficulties involved, she warned against a situation in which professional success in the law becomes restricted only to the ‘well connected and well heeled’.
And what remained the best “put down” of the Conference was when Helena described Lord Sumpion’s comments about women holding high judicial office… “we’ve got one” with observation that some incredibly clever people can also be deeply silly!
Developments and departures…
Interestingly, the 2015 Conference featured two significant departures from tradition – as far as we can recall, that is. One was the inclusion of the Yong Bar Conference, launched by its keynote speaker, Sir Terence Etherington, Chancellor of the High Court whose message focused on the challenges faced by young barristers and the ways in which such challenges can be met.
Breaking into overt political discussion was, again, something rather new this year. It was the political debate which featured a panel of real live politicians. Not unpredictably, this turned to be one of the most popular of the specialist sessions held at the Conference. Debating human rights, anti-terrorism legislation, access to justice, the funding of the justice system and more, the cross-party panel included Robert Buckland QC MP, the Solicitor General for England and Wales, Andrew Slaughter MP, Shadow Minister for Justice and the Liberal Democrat peer Lord Marks of Henley-on-Thames.
When at last the Conference drew to a close, Dominic Grieve rose to the occasion with what some would have called an end-of-term address. Striking an almost elegiac note, he described, for example, his encounter with the more enthusiastic students of the law, greatly impressed with their unwavering commitment to the Bar as a true vocation.
Here, excellence in advocacy at the Independent Bar became the prevailing theme of Dominic Grieve’s remarks, as did the Rule of Law in the UK. ‘The Independent Bar can deliver a more competent service than litigants in person or McKenzie friends,’ he said, adding that with access to justice severely limited, we — the Bar — are “a whited sepulchre”, especially with reference to the Criminal Bar. ‘We must ensure that criminal advocacy standards are enforced,’ he said, basically in support of a panel system — and that ‘our independence and professional ethics are maintained.’
Also mentioned in the closing speech were such issues as the proposed Bill of Rights possibly replacing the HRA, (but who knows where or when – as this matter seems to have been relegated to ‘the back burner’). Also put forward was the obvious need for reform, or at least raised awareness in so many other areas, including the relationship between the Bar and Parliament, considering the dangerous times we live in, with justice and national defence ‘the new Cinderellas of government expenditure’.
Change in the offing
Continuing on a fairly positive note, however, were Dominic’s comments on the current Lord Chancellor, who even though ‘at the neocon end of the spectrum’, has ‘keen intelligence and a strong sense of the significance of his office.’ The Bar then, must be prepared for the advent of certain changes, some eagerly awaited, like the abolition of the awful ‘criminal government surcharge’, which it is hoped, will soon be long gone. Nevertheless, as stressed in most of the debates throughout the Conference, Dominic concluded by saying that the Bar must remain vociferous in its own defence and that of the public interest, ever fiercely protective of ‘the balance between citizen and state’.
Elizabeth Robson Taylor of Richmond Green Chambers