I think it’s time the Bar Standards Board had a theme tune. Something catchy and upbeat.
I’m going to show my age here. Fleetwood Mac, anyone?
I’m not going to risk breaking into song – I’ve not had enough to drink yet. But when I sat down to write this speech I found these lyrics running round my head:
Don’t stop thinking about tomorrow
Don’t stop, it’ll soon be here
It’ll be even better than before,
Yesterday’s gone, yesterday’s gone
Over the past six years on the Bar Standards Board I’ve spent a lot of time thinking about the future of the Bar, what’s changing and why, and what challenges that creates for the profession and for its regulator.
It’s been very clear to me that a lot of practitioners are very worried about what the future holds. But are they right to be? Are we all doomed? Yesterday’s gone, but does it follow that tomorrow is a relentless slide downhill, or do we have it in our power to make it better than before? What does the future hold for the Bar and its regulator? Utopian optimism or dystopian despair?
Predicting the future is nowadays a specialism in its own right. Futurologists, they call them.
There are probably more famous examples of futurologists getting it wrong than in any other field of human endeavour.
A few years ago, a book originally published in 1972 gained something of a cult status and was republished. The title was, “2010: living in the future” and its author, Geoffrey Hoyle, envisaged that we’d all by now be working a three day week and wearing jumpsuits.
When the book was rediscovered and became a viral phenomenon online, the burning question everyone had for the author was, why jumpsuits?
Well, it turns out that was a kind of fashion shorthand for the author’s expectation that the future would involve restriction of individual liberties. His imagined future was a collectivist vision of a planned society, which was more than a little influenced by the political climate of the cold war when it was written. The idea that the Berlin wall might come down and the tectonic plates of geo-politics rearrange themselves, in the way they did 17 years later, was just beyond his imagining.
There’s a lesson to be drawn from that. Futurology is often not radical enough, patterning the future on the present, because really radical change is inherently unpredictable – it breaks the mould of the past.
Geoff Hoyle thought we’d be liberated by technology – that’s also a common theme – the idea that technology might mean we have to work harder doesn’t seem to have occurred to many futurologists. But think photocopier, or email.
I’ve certainly seen some predictions about the future of the Bar that proved just as ill-founded as any of these examples. I was called to the Bar in 1988. The Green Paper on rights of audience for solicitor advocates came the following year, in 1989. There was, I clearly remember, a mood of doom and gloom and indeed a sense of betrayal. Some chambers even reacted by telling their pupils not to turn up for their pupillages, as they would not be taking anyone on. My then pupil-master predicted the Bar would only last another 10 years but told me I could risk it if I liked.
Clearly, those predictions were too extreme. The Bar is still here. Yet much has already changed.
Regulation of the Bar has changed since 1989.
The era of pure self-regulation is over. The Legal Services Act 2000 separated the Bar Council’s representative and regulatory functions. The BSB’s board now has a lay majority and a lay chair. Our lay members bring expertise from all sorts of walks of life to complement that of our barrister members. This is to be welcomed.
The Bar is not the same as it was in 1989.
For a start, half of new entrants to the Bar and around a third of the practising Bar are now women: over 5,400 out of some 15 and a half thousand practising barristers. That’s progress, even if it remains the case that only some 12% of self employed QCs are women. Progress has also been made, even if still more needs to be made, in greater diversity and in broadening access to the profession.
The Bar is less London centric, with many more chambers located outside London.
Solicitors now routinely draft many of the documents which, when I first came to the Bar, it was the exclusive province of the Bar to draft, such as pleadings. Most of the old restrictions on what barristers can do have also been swept away. The division of labour between barristers and solicitors is now largely a matter for the market to determine – what is efficient, what makes sense in the context of a case of the given scale and complexity, and what the client can afford – rather than being dictated by restrictive regulatory rules. The referral model remains robust in many areas of practice, where the nature of the work makes that the best way of delivering services – my own field of commercial litigation is one such example – but it’s now a matter of choice: yours and your clients’.
There are now over 6,300 barristers, well over a third of the Bar, able to provide services on a public access basis. Some of those individuals, admittedly not many as yet, but some doughty pioneers, have taken up the opportunity, now available under the BSB’s rules, to conduct their client’s litigation, in a one stop service, if that’s what the client wants. To date 133 barristers have obtained authorisation to conduct litigation and it is still very early days.
Conversely, out of a solicitors’ profession of over 130,000 practising solicitors, there are currently some 6,560 solicitors with higher rights of audience, about 75% of whom practice partly or wholly in the area of criminal work, with the remainder doing only civil work.
In each of the last two rounds of silk appointments, 5 solicitors were appointed to the rank of QC – so, about 3 or 4% of successful applications were by a solicitor. Whilst there is still only one High Court Judge who is a former solicitor, there are 75 former solicitors sitting as Circuit Judges and solicitors are well represented in the junior ranks of the judiciary.
There are over 2,300 practising barristers who are employed in SRA regulated organisations.
The introduction by the BSB of entity regulation, from this April, means that the option is now there for barristers to form firms or companies regulated by the BSB and to do so jointly with solicitors, if they think that is the best business model for their needs and those of their clients. I don’t expect there will be a flood, certainly not initially, but eventually we are likely to see the BSB regulating some firms whose members include solicitors. Indeed, in principle, an entity predominantly owned and managed by HCAs could opt for BSB regulation provided at least one barrister is an owner and manager and provided the entity fits the BSB’s published policy.
On any view, the boundaries have blurred, in terms of the spheres of activity of solicitors and barristers, the business models it is open to them to adopt, and how and by whom they are regulated.
So what’s next? Fusion of the professions? A single legal services regulator?
In his speech as Chairman of the Bar last November, Nicholas Lavender QC reminded us that there have been barristers since 1466 – our profession has existed for well over 500 years. But over the period since I joined the profession myself there has been significant change, and the pace of that change is accelerating. Will there still be barristers 500 years from now, 50 years from now, 25 years from now? If not, will anyone care?
The one thing we can be sure of is… we’re pretty likely to get it wrong, at least when we try to predict in any detail what the future of the Bar will look like. But does that mean it’s not even worth trying?
No. In my book, it is more important than ever for the profession to seek to understand what the drivers of change may be and to cultivate the skills and the mind-set to be able to adapt. We need to pay attention.
I am going to take a bit of time to survey the field. What are these drivers of change? They include regulatory changes, technological advances, economic pressures and unmet social needs. Let’s take a while to understand them and then I’ll come back to my title and consider how these things may affect the Bar and its regulator, and what future-proofing might involve.
The legal sector has its own futurologists.
For many years now, Professor Richard Susskind has been making a living out of writing books about “The End of Lawyers?” – that was the title of a seminal work of his, published in 2009. His thesis, if I might summarise, is about the ways in which technology can be used to commoditise mass delivery of legal services and write the lawyers themselves out of the picture. Lawyers would either need to become entrepreneurs in this new world of digitised and commoditised services, competing with providers from outside the traditional legal sector, or will find themselves competing with one another for slices of a radically diminished cake, in the form of those residual areas of work that can truly be said to involve cutting-edge legal development, requiring bespoke solutions delivered by human beings. And no sooner have you come up with the cutting-edge concept of today, than the commoditisers move in to transform it into the commoditised solution of tomorrow, and undercut your bespoke offering with a lower cost alternative – so like a shark, the innovators have to keep perpetually moving forward in order to survive.
Richard Susskind has however emphasised that there was a question-mark at the end of that book’s title and his more recent book had the more optimistic title, if you happen to be a lawyer, “Tomorrow’s Lawyers”.
In fact, he is a good example of someone whose predictions are sufficiently compelling that they make themselves true. No major legal services conference is complete without him and his ideas have undoubtedly shaped initiatives, both by the largest law firms and by their regulators, to make online delivery of legal services a reality.
Indeed, it would not be an exaggeration to say that his ideas, and those of Professor Stephen Mason on regulatory policy, were influential in the formation of the government policy that led to the Legal Services Act 2007. That statute was designed to shake up the legal sector, open up competition and remove obstacles to innovation. It made it possible for legal services businesses to be wholly owned and managed by non-lawyers. Many of these new business structures have already been authorised by the SRA. The theory is that new entrants to the sector are more likely to be innovatory and their presence forces everyone else to up their game.
There is no question but that the impact of all this on the solicitors’ profession will be profound. The view I regularly hear expressed, at conferences on the future of the legal sector, is one that sees High street firms all but disappearing, along with much of the middle tier, whilst the largest and most successful traditional law firms will face stiff competition from new entrants owned and managed by non-lawyers, or may choose to merge with some of these new entrants. The landscape, in terms of who are the top 20 law firms, what services they focus on, and how they deliver those services will likely look very different, in 10 years’ time, from the way it does today.
But on the whole, when I go to the conferences at which these things are hotly debated amongst solicitors and their clients, there are very few participants from the Bar, if a single one. I don’t think we can afford to be so sanguine that the Bar will be unaffected.
As a profession that is still predominantly a referral profession, we are not an island and we will be affected by whatever impacts those who instruct us. As competitive pressures increase on law firms, the Bar can expect to feel the knock on effects. If other avenues are closed to them, more solicitors will be forced to compete for the work done by the Bar.
Equally, it is arrogant and wrong to think that there is no scope for technological change to affect the work available to the Bar, or that all of that work falls into the “bespoke” category and is incapable of commoditisation.
There are, of course, some obvious differences between, say, online delivery of a conveyancing service or will-writing service, using automated processes to generate documents, and the kinds of services people look to the Bar for. Some body has to go to Court and what they do when they get there can’t be synthesised by a computer program, now, or I venture to suggest any time soon.
Above all, unless and until the Imitation Game, as posited by Turing, is well and truly won by a machine, it will take a human being, an advocate, to influence the decisions of another human being, a judge, by finding just the right words, just the right delivery. And that’s before we embark on the question of when, if ever, a computer program will master the art of cross examination. I would suggest that is a test which is about as far beyond Turing’s Imitation Game as Turing’s own work on cryptography outstrips managing the Times crossword.
So, as I say, the Susskind vision of the future notwithstanding, it will remain the case that some body is needed, when it comes to Court work. We may not travel there physically, however. Already, and this will increasingly often be the case in future, we may interact with the Court remotely, by phone or video link. But as long as there are Courts operating on an adversarial basis, representations will need to be made on behalf of litigants and a proportion of those litigants will engage experts to make those representations on their behalf, rather than representing themselves. We are those experts and we had better not let anyone forget it. The Bar will, however, face increasing competition from solicitors for that Court work.
What about advisory work? There is some US research showing that a computer program using an algorithm does better than lawyers at successfully predicting the decisions of the US Supreme Court. Perhaps I am being parochial here but I am not convinced that particular research result would be replicated here. When you are trying to second guess the likely decisions of justices who are political appointees as well as lawyers, gaming theory may perhaps reach some of the parts that legal analysis alone does not. But whether an algorithm can yet capture the highly nuanced play between precedent and principle that characterises our own system I prefer to doubt. Set that one as a question in jurisprudence and debate. Equally, predicting how the legal rules will play out on appeal is one thing, rules are by definition susceptible to some kind of formula that seeks to predict the outcome of their application, but I seriously doubt that a mathematical formula can predict the impression the judge or jury will form of a given witness in the witness box as accurately as an experienced advocate.
Therefore, the good news for the Bar is that second-guessing how the Courts will resolve cases which turn on the judge’s impression of witnesses, or novel or marginal cases that might progress up the appellate ladder, remains firmly cutting edge and bespoke and a job for us humans.
But that does not by any means cover the whole field of actual and prospective litigation. I am sure that sophisticated decision trees could be designed to take sets of facts on areas where the law is clear and provide answers as to how those situations are likely to be resolved. I am sure they are already being designed – or have been. We should assume that in those areas of law where the same problems recur with great frequency and where the law has already provided clear answers, technology will come up with ways of delivering those answers to consumers without them having to reach for a lawyer to tell them what they could get from a standard legal textbook, if only they had some legal training. The High street practitioner, jack of all trades, who having been posed that sort of question by a client might have reached for the Bar rather than the textbook will most likely be substituted by a branded website supplying answers, perhaps as part of a service provided by the consumer’s insurer, or for a subscription. I’ve advised quite a number of providers on online offerings of that kind and I am sure what I’ve seen is the tip of a very large iceberg.
What’s more, if one leaves aside time spent actually in Court and time on advice that is truly bespoke, there are other commoditisable parts of our own jobs, particularly as we are starting out in practice. As a baby junior, I drafted pleadings in a class action where there were hundreds of claims against solicitors’ firms for negligent mortgage lending, sitting under global Particulars of Claim. We thought ourselves very sophisticated at the time (this must have been the early 90s) in having designed a collection of about 12 or 15 macros covering all the relevant variants, each of which spat out a given paragraph when you hit the right key combination, so that the drafting could be done in a matter of moments once you had decided which set of variants was appropriate. It’s not impossible that the job of selecting between those variants could now, itself, be automated, within parameters defined by the senior lawyers in the team, eliminating the need for juniors to do the job we did.
Certainly, I recall spending more time than I would have liked in massive disclosure exercises because we were cheaper than the paralegals. It wasn’t exciting and did not hone courtroom skills but it paid the bills at a time in my life when that was quite a challenge and it’s also how I first met a number of solicitors who now are very senior in their profession. Electronic review of disclosure is becoming ever more sophisticated and has certainly reduced the need for manual review on the scale typically seen in large scale commercial cases in the past. We shouldn’t mourn that. But we should ask how those starting out are going to pay their bills.
More positively, there are opportunities as well as threats in change and unless we lift our heads and notice what is happening around us we’ll miss those too.
There is both a threat and an opportunity in the fact that most lawyers are too expensive for most people most of the time. The decent sized business who decides not to litigate over a significant claim. The private individual who is trying to represent him or herself in civil litigation. In a society built on a rule of law it is an indictment if most people have no meaningful means of access to the courts. If we can’t do something to remedy that then we perhaps deserve to be written out of history as an expensive irrelevance to most people’s lives.
There is an unmet need, in privately funded civil litigation, which represents an untapped market for the types of services we can provide. These are opportunities for the Bar to fill a very real gap in access to justice by providing a low overhead service which is better tailored their needs.
More needs to be done to get the message out there as to what the Bar can offer. Those who can’t afford to have both a barrister and a solicitors’ firm, can come to the Bar direct, and those who can’t afford to have anyone conduct their litigation from end to end, may nevertheless be able to afford, and greatly benefit from, buying legal services “by the slice” from the Bar.
The term “unbundling of legal services” has been coined for this. In many ways, it’s just a logical development of what the Bar has always offered: we are an array of brains on sticks, for hire – pick the one you need for as long as you need it and no longer than that, then pop us back on the shelf. The ultimate form of outsourcing, as flexible as we are needed to be.
At the other end of the legal services spectrum, the increasing sophistication of in-house legal teams amongst the largest institutional clients means that they may have no real need to interpose a law firm between themselves and the Bar and may instead choose to come direct. At the same time, many of them are keen and highly sophisticated users of alternative litigation funding arrangements. Their buying power in the legal services sector is such that when one of their General Counsel crosses the room at a gathering hosted by one of the legal directories, the tidal effect is observable as the assembled lawyers succumb to the gravitational pull.
Regulators are rightly concerned to protect vulnerable clients and safeguard the interests of the paradigmatic man-in-the-street consumer of legal services. But there is sometimes a failure to appreciate quite how much the power relationship is reversed in some other areas of the market, such that the concern is not protecting the consumer from their lawyer, so much as ensuring that their lawyer’s independence, on which our system of justice critically depends, is not undermined by their over-dependence on very powerful consumers of their services, or by financial pressures created by alternative funding arrangements. We should not rashly and uncritically assume that the Bar is wholly immune in this respect.
Barristers need to keep their own antennae pricked for situations that could threaten their independence. I once met a barrister who had moved to being in-house counsel in a major institution and he told me he kept a year’s salary saved up so that, if he ever had to give advice his employer did not like and would not take, he could walk. I wondered how many of us at the self-employed bar could say as much. Yet we too readily use “independent” as though it was a synonym for “self-employed”, rather than a state of mind which, whatever your technical employment status, needs to be assiduously safeguarded.
So far, I have been focussing on drivers of change in privately funded work. However, a dominant theme over the years I have been involved with the BSB has been the impact of legal aid cuts on publicly funded work. In the year before LASPO came into effect on 1 April 2013, there were 573,000 new cases of individuals receiving some form of legal help on legal aid but over the ensuing year there were only 172,000 such cases. There have been successive rounds of cuts, such that the Bar Council calculated that the average fee paid to a barrister presenting a defence case in the Crown Court dropped by 37% in the 6 years to 2013. Whilst the Bar has been spared further cuts to its fees in the next round, the pressures on the system as a whole remain acute and, again, we can expect there will be knock on effects on the Bar as a result of the impact on solicitors and on the Courts.
The Jeffrey Review, which reported in May 2014, came up with a creditably independent analysis of the state of play in the field of criminal advocacy. Over the past year and more, I heard quoted over and over again the bits in that report we like. Those bits described the independent Bar as a “substantial national asset”; compared in unflattering terms the perfunctory extent of solicitors’ advocacy training, relative to that required of the Bar; and said in respect of criminal advocacy that: “the legal market could scarcely be argued to be operating competitively or in such a way as to optimise quality. The group of providers [namely, the Bar] who are manifestly better trained as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price nor on quality.” We at the Bar loved those bits and we quote them to anyone who’ll listen, at the least provocation.
But I rarely, if ever, hear anyone quote the bits where, in effect, he tells the Bar to wake up and smell the coffee. Bill Jeffrey had some home truths to tell which deserved to be heard. The clock cannot be turned back he said, so the Bar need to be prepared to adapt its business structures to meet LAA procurement processes halfway – it is fair to say he also expressed the hope that LAA procurement would in turn adapt to make that more readily achievable. He hoped that barrister-led entities might emerge that would bid for contracts so as to have control of cases from the outset, possibly on the basis that in more straightforward cases their junior members would act as the single principal, or else bringing in solicitors to a barrister-led contracting entity. He also pointed to the fact that other jurisdictions have a recognisable Bar specialising in advocacy, despite having career patterns whereby people start out handling the whole litigation process before moving on to specialise in advocacy. As he saw it, in the field of criminal advocacy, something was going to have to give, either the business structures or the career paths by which people arrived at the point of being able to make a go of it at the self-employed Bar.
I’ll readily acknowledge that criminal advocacy is not my own field. Maybe he’s got his forecasts wrong. But I can’t help feeling that there’s something amiss when I see people so ready to quote the bits we like and pass over the rest in silence and without debate. There are, in fact, now indications that Government is going to engage with Bill Jeffrey’s recommendations.
A number of judges have spoken out about the impact that legal aid cuts have had on the court process and have highlighted the human cost involved. Increasingly, and on all sides of the debate, there’s a recognition that we have passed the point where we can expect the same job to be delivered for less and less public money. Over the past few months I have spent a fair amount of time, together with our new Chair, Sir Andrew Burns, talking to members of the senior judiciary about how they see the future of the Courts and what, in concrete terms, is being done to make that future a reality. Like Richard Susskind, they see use of technology as a key to the solution. The Treasury is being asked to approve plans to devote a big chunk of investment to IT systems on the footing that this front end investment is the only way for MoJ to reduce costs over the longer term.
Lord Justice Leveson has published his proposals for how technology could help in streamlining criminal procedure, the Leveson Review of Efficiency in Criminal Proceedings. There will be fewer hearings, and certainly fewer when the parties gather physically at Court with far more extensive usage of video links. Richard Susskind was commissioned to produce a report on how to reform the small claims procedures, which makes proposals modelled on E-bay style online dispute resolution. Similar approaches might be applied in some other parts of the Courts. It’s been mooted that a more inquisitorial approach might be adopted in the lower levels of the Courts, although I think it is recognised that would have implications for the numbers of judges needed and might just shift cost from legal representation to the Court system. That’s just the start of what will no doubt be a developing discussion about how the Courts should adapt.
There’s no consensus as yet on the solutions but the consistent themes emerging are that hearings need to be reserved for situations where they are truly needed and that those situations are many fewer than is currently assumed.
Those operating as advocates in this brave new, post-austerity world will need to hone their skills in using a remote link, where that’s appropriate, and will need to make realistic judgements about when and how to resist the suggestion when it is not appropriate. They’ll need to navigate electronic bundles as sure footedly as we of the old guard navigate our trial bundles bristling with yellow post-its and multi-coloured highlighting.
They’ll be lucky if the other side is represented. Outside the much reduced scope of publicly funded representation, it is ever more frequently the case that barristers find themselves facing self-represented litigants. That brings into sharp focus the tension between a barrister’s duty to their client and their duty to the Court. Barristers generally are punctilious about how they manage that, but self-represented litigants can, understandably enough, fail to understand the balancing act that’s required and can have unrealistic expectations of the barrister on the other side. We at the Bar Standards Board have certainly seen an escalation in complaints by litigants on the other side that are found to be misconceived and based on misunderstandings of the barrister’s duties. Had both sides been represented, those complaints most likely would not have been brought.
The Commercial Court may seem and indeed it is, by comparison, a privileged and rarified world but that doesn’t mean it will be completely insulated from the winds of change. I listened to one senior judge outline how his last arbitration before going to the bench had been run on chess clock principles. Each side was given the same, stringent budget of time and had to decide where and how to deploy it. More time on one issue or one line of cross examination left less time for other points. The guillotine was merciless. Clear eyed judgments had to be made and adhered to as to which were the points that carried most value, in terms of their impact on the outcome.
I can imagine clients in the Commercial Court wanting to be able to choose between that approach and the traditional Full Monty. Certainly, if both sides agree they’d rather save costs by a truncated process, it seems to me they should have that option. We may well see this piloted before long. Cutting to the chase in that way will require the most highly developed skills on the part of the barristers involved. No time for the points that almost work or to have three goes at making your best points. You’ll need to be right first time in identifying your best points and right first time in the way you develop those.
I once attended life drawing classes where there were timed poses. You started with 15 minutes and didn’t manage to do much with it. Then you had a minute, 3 minutes, 5 minutes and then back to 15. You made a lot better use of that last 15 minutes than you had of the first. Perhaps advocacy training needs to focus, in depth and as a priority, on “less is more” as a serious learning objective. Shorter written submissions. Briefer oral submissions. A real awareness of just how much else is crossing the desk of the person you are addressing that day and how very little time they have to understand and decide on your case.
If we are to square the circle on the challenges facing the publicly funded sector, you might think a similar time-managed approach would make cases shorter and less costly for the state. But again that requires more highly skilled advocacy and better preparation, not less, which is going to be difficult to achieve if the rates paid continue to cause talent to exit to other better funded areas. And it also requires a preparedness on the part of judges to insist on the timetable, which can’t be done if one side is facing, unrepresented, a life changing threat of some kind.
That’s an overview of some of the drivers of change, the reasons for thinking change will accelerate rather than the contrary and some of the challenges that will create for the Bar and for its regulator, over coming years. So let me at last turn back to my title. What’s the role of the regulator in all this and what do I mean by future-proofing the Bar.
It will be for the Bar to figure out for themselves how to seize the opportunities and navigate around the challenges that the future holds. I don’t have a route map. I’m not even sure that I’m right about the destination. You’ll need to future proof yourselves and I can’t tell you how to do that. But I do have a clear idea what the role of the regulator needs to be. In very broad terms, since we can’t be sure of correctly predicting exactly what the future will bring, the job of the regulator is to make sure we remove unnecessary obstacles, whilst preserving the standards and expertise which have brought the Bar international recognition. We need to free the Bar to decide for itself whether and how to adapt, if that proves to be necessary as the market changes.
Let me highlight three themes, in terms of the BSB’s role.
First, whatever else may change, it remains the case that advocacy is special and it needs and deserves specialist regulation. Let me expand on that.
Our system of justice depends critically on the competence and honesty of those who appear before the Courts and their ability to make the right judgments about the relationship between their duty to the Court and their client. Regulation of advocacy therefore engages the public interest in a way that includes but goes far beyond the interests of the individual receiving the service. Yes, the immediate consumer of the service matters, but so does the administration of justice and the rule of law.
For all the reasons I have explored, I don’t expect the Bar to grow as a proportion of the population. If anything, I would expect it to shrink as a proportion and perhaps also in absolute terms. But I would also expect that cadre of barristers to need to be more skilled in future, rather than less so, deployed only on that smaller number of occasions when, in the brave new world I described, hearings are truly necessary and the complexity of the matter really warrants expert representation.
Regulatory boundaries have blurred and some, even some voices in the senior judiciary, suggest there are just too many legal services regulators. Surely one would do. Nonetheless I continue to make the case for specialist regulation to anyone who’ll listen. It’s not that I can’t imagine life without the pleasure of BSB meetings, but I genuinely believe that it’s in the public interest that the BSB should continue to exist as a separate specialist regulator, rather than there being one monolithic legal services regulator covering the entire spectrum.
I can’t change the fact that a portion of those who appear in court or in Tribunals are regulated by the SRA or by CILEX and are not directly within the control of the BSB. It’s a feature of our legal services sector that none of the regulatory boundaries were neat and tidy to start with. They were largely historical accidents and they are even messier now than they were originally. But the BSB, as regulator of the vast majority of those who in practice specialise in advocacy in the higher courts, can use that position to insist on the style of regulation it thinks is best fitted to that, rather than a one size fits all approach. We can use that position to claim a voice, as regulator, not as trade union, on matters that adversely affect the way the system of justice works. That voice may then have a better chance of being heard. Where we lead, other regulators with a stake in advocacy may follow.
But equally, if over the medium and longer term we are talking about a shrinking rather than growing number of individuals who are regularly providing advocacy services in the higher courts, then on any view we should do all we can to bring “into the tent” those solicitor advocates who are doing the same work we do, who want to be regulated by the BSB and who want to mark themselves and their firms out as adhering to the higher standards of training we consider necessary. How people originally acquired their professional title should, in future, be less important than the job they are actually doing and their willingness to fully commit to the same standards as ourselves.
On the other hand, we at the BSB are not attempting to regulate commoditised delivery of automated services. The SRA has geared up to that task. It has to a significant degree shifted its focus from people to entities, systems and processes.
We’ve geared up to authorise entities because, if barristers want to operate through entities, it is a statutory requirement under the Legal Services Act that those entities need to be authorised. But the focus of our regime remains on the individuals: individual responsibility, individual integrity, individual competence, because in the end it is an individual who stands up in Court. That doesn’t change just because the individual happens to be operating through an entity rather than being self-employed.
To the extent that systems and processes do matter for the work we do, they are every bit as relevant for the self-employed Bar as they are for any barrister who happens to form an entity. Members of a set of chambers need collective systems for ensuring, for example, client confidentiality in email communications, or conflicts checks, or management of ethical walls. That’s why we have introduced proactive regulatory supervision, to make sure members of chambers have taken steps to address these sorts of collective risks. We’ve had positive feedback from many of you that you’ve found supervisory visits to be of value.
Secondly, the BSB needs to develop a regulatory approach which is flexible, intelligent and capable of adapting to and reacting to change. What does that mean in practical terms?
An important part of our job as a regulator is to get out of the way. We need to liberate people to plot their own course, unless there’s good reason to restrict them in what they can do. Hence, we have made rule changes that let you choose the business model that suits you and let you choose whether or not you want to combine advocacy and conduct of litigation. If you don’t want to, that’s fine, but the choice should be yours.
We need to avoid imposing unnecessary burdens. For example, we took the view that a way needed to be found to enable those who did want to conduct litigation or get money on account of fees to do so without holding client money. Regulation of client money is the source of a huge amount of direct and indirect cost in other regimes and much of the SRA’s effort goes into policing client money and dealing with breaches. Instead of establishing a client money regime, we went to the Bar Council to discuss whether they’d be willing to spearhead development of a third party service and that led to the development of BARCo. They developed it independently of us but taking into account our views on the risks that it needed to address. I think that is a good example of constructive engagement between the regulatory and representative arms. We framed our rules so that you can, if you wish to do so, use BARCo or any equivalent FCA regulated service. The other legal services regulators like the idea so much they are thinking about adopting it themselves. If there were a single legal services regulator imposing a one-size-fits-all regime the Bar would be subject to an expensive client money regime like everyone else. As it is, we’ve shown the other regulators that there are alternative ways to crack the client-money nut and you now have this additional option available to you, without having to be subjected to the costs of a client money regime. Again, whether you make any use of that is entirely a matter for you.
More broadly, the new Handbook introduced in January 2014 represents a fundamental overhaul in the BSB’s regulatory approach. In a world that is changing at a faster pace, highly prescriptive rules may miss the moving target. You can’t keep redrafting the rules as circumstances change. We’ve sought to strike a better balance, in terms of the level of detail in the rules, and we’ve made it clear that when a particular situation hasn’t been specifically dealt with you still have a responsibility to apply the core duties. That makes demands on you to apply the code intelligently and taking your best stab at what approach best fits the outcomes we’ve articulated. It also requires a more intelligent approach from the regulator in enforcing the code. We’re moving away from a box-ticking approach to compliance.
As already touched on, our new supervisory regime will seek to identify and manage risks before they ever become an enforcement issue. We’ve overhauled our internal processes for collecting and managing information which might point to a need for regulatory intervention. We’re about to launch Risk Outlook, a periodic publication that will share with you risks that we are currently focussing on and why.
Thirdly, the BSB recognises that we need to be equipping new entrants to the profession for a world which is going to continue to change around them in ways we can’t reliably predict.
We are embarking on a major program of reform of Education and Training, stretching forward to 2017. We’ve consulted on a Professional Statement which will define what training needs to equip the new barrister to do on day one. We’re about to launch, tomorrow, a major consultation paper on reforming the route by which people get through to day one. I don’t have time to go into the detail tonight, and indeed others at the BSB are better qualified than I am to go into the detail, but I’d highlight two elements. We’re thinking hard about building more flexibility in to the routes by which people access the profession, for example making it more feasible to work alongside acquiring the building blocks towards eventual qualification. That may be important in safeguarding the future diversity of the profession. We are also thinking about what skills the professional stage of training needs to inculcate. Clearly advocacy skills remain paramount, but client facing skills, IT skills and business skills all have a role. Please have a look at the paper and give us your views.
Lastly: here, very tentatively, are some thoughts about what all this may mean for the future of the Bar. In all this change, what won’t change is that there will be a hard core of situations adjudicated by the Courts in which there’s still a need for expert representation. But the volume of that work, per capita, may be less than sustains the Bar now and the competition for it ever more acute. Those doing it may need to be very highly skilled, to cope with highly focussed time-managed hearings. Barristers will need to strike a balance between broadening the scope of their services, to meet client demand and pay the bills, and ensuring that their expertise as specialist advocates is not diluted. Acquiring the necessary levels of expertise will be even more of a challenge if there is much less of the less complex type of advocacy work on which people used to cut their teeth.
All of that may create a need, as Bill Jeffrey predicted, for alternative business structures or alternative career paths. In place of one dominant model and career pattern, a mainly self-employed Bar, whose members are there from cradle to grave, we may have a multiplicity of approaches. Barrister-led firms offering one-stop services. Others following a New Zealand-style career path, where they move to self-employed status at the Bar after some years in a firm. Yet others, maintaining the traditional model.
It will be essential that the Bar maintains a sense of its own identity, as a cadre of people bound together by their shared commitment to excellence in advocacy and high ethical standards. The Inns, the specialist Bar associations and organisations like Bar Pro Bono are amongst the ways we build a community of the Bar. Feeling yourself to be a member of a community who share the same high standards and wanting to be recognised as a worthy member of that community is more effective than any rule book can ever be in ensuring compliance. But that community will need to be inclusive rather than exclusive if it is to keep pace with the way employment patterns and career paths may change, not for example treating the employed Bar as second class citizens, as they sometimes tell me they feel to be the case.
I am however optimistic. The Bar meets a real need. It has proved itself tremendously resilient over such a long time precisely because it meets that need so well. It will still be recognisably the Bar, even if there is greater variation in the business models adopted and more flexibility about whether, in a given case, the barrister takes on the whole case or only the advocacy element. If in future, alongside those operating in the traditional way, there are also low overhead, advocacy-led firms and wider provision by the self-employed bar of direct access services, we’ll have successfully broadened the range of choice for clients and will have helped close some of the existing gaps in access to justice.
At Bar Council a couple of months ago, Alistair MacDonald QC, the current Chairman of the Bar, proposed that the Bar needed to engage in debate about its own future. He’s right. I hope this small contribution will help towards getting that debate going. And no doubt you’ll be telling me, in 2039, that I have got my predictions every bit as wrong as the predictions that were made to me in 1989.
Don’t stop thinking about tomorrow.
It may be even better than before.