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World Bar Conference: The future of the independent referral bar

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Given our location this afternoon in the heart of Edinburgh, I cannot conceive of a more appropriate place for a discussion on the nature of the independent Bar. In many ways, Scotland is synonymous with debate and deliberation on the topic of “Independence”.

A different outcome in the 2014 referendum and this would have been Scotland’s first month as a newly-independent state. In a narrower legal context, in 2002, Edinburgh hosted the Inaugural World Conference of Barristers and Advocates, inspiring “The Edinburgh Declaration”, with resolutions unashamedly defending the independence of the courts and legal profession. Unlike the constitutional status of our host country - which, depending on which Scot you speak to, is something to be publically debated and decided upon once, or possibly twice, in a lifetime, the state of the Independent Referral Bar is an enduring topic of discussion.

With each passing year, the ability maintain an Independent Referral Bar and the consequences of doing so, whether positive or negative, becomes ever more challenging. As Heads of the various Bars, we find ourselves continually tested on how to reconcile traditional values and principles with pragmatic modern realities. We must therefore continually and collectively revisit this topic - to perform a health check as it were - to ensure that our principles, values, beliefs and practices are and remain fit for purpose in the face of rapidly evolving commercial, technological, competitive and regulatory pressures.

Northern Ireland

At the outset, I will make my own position abundantly clear. As Chairman of the Bar of Northern Ireland, I am proud to represent a strong, thriving profession of over 600 self-employed barristers in independent practice. Our value and strength lies in our firm commitment to justice, our constant pursuit of excellence and our unashamed dedication to independence.

For us, the existence of an Independent Referral Bar is one of the cornerstones of the Northern Ireland legal system and our wider society. We all recognise the fact that, as expressed in the Edinburgh Declaration, the independence of the Courts is essential for the proper functioning of a democratic society. And this in turn is very much dependent upon the independence of the legal profession in that society. Independence of the legal profession is a prerequisite for a truly independent Court System.

The consequences and benefits which innately flow from the existence of an Independent Referral Bar are many, with particular highlights being:

The system in Northern Ireland whereby members of the public have direct and unrestricted access to a wide network of local solicitors who in turn have access to the Independent Referral Bar for advocacy or specialist advice, has been endorsed unanimously by an independent review Committee following a comprehensive investigation into the provision of legal services in Northern Ireland. The Bain review concluded atpara 6.43:

“we consider that the current model of the Independent Referral Bar Library is one that works well in Northern Ireland and which offers consumers access to a wide choice of high quality, independent legal representation and advice. In our opinion, consumers have more to gain than to lose from retaining the prohibition on barristers forming partnerships.”

Independence – Global Interpretation

Of course, our commitment to the virtues of independence in Northern Ireland does not represent a unique viewpoint. The former Lord Chief Justice of England& Wales, Lord Judge had this to say when he spoke at the Bar of England and Wales conference on the Future of the Bar in 2010:

“For my part, virtually the beginning and end of my position is that our system of justice requires a high quality profession of advocates, men and women of integrity and independence of mind and complete dedication to the interests of the client, but sometimes with great difficulties of conscience, honest in its responsibility to the Court and to justice. Judges at every level – juries – magistrates depend on this profession.
Any judge will tell you how much easier it is to do justice according to law if the case is well argued and how difficult it is when it is not. And in the longer term our judiciary must be filled by men and women of proved integrity and proved independence of mind”.

However, despite endorsements from important legal figures such as Lord Judge, we must never become complacent about the continued existence of and the continued wider appreciation of the importance of the independent Bar. And it is also worth reminding ourselves of the fact that these benefits are sadly not enjoyed by all and instead have to be fought for and protected in the face of attempts to quash an independent legal profession.

The preamble of the UN’s Basic Principles on the Role of Lawyers adopted in 1990 stipulates that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political” requires “that all persons have effective access to legal services provided by an independent legal profession” and the United Nations Human Rights Council affirmed in 2015, that an independent legal profession is among the “essential prerequisites for the protection of human rights, the rule of law, good governance and democracy, and for ensuring that there is no discrimination in the administration of justice.”

This is not a message which is solely directed to states and jurisdictions with obvious democratic deficits, it has universal applicability. Even in an EU context, it is concerning to note that as recently as 2015 the International Bar Association’s Human Rights Institute issued a report entitled: “Still under threat: The independence of the judiciary and the rule of law in Hungary”, which assessed the implementation of 23 recommendations set out in their 2012 report on Hungary, and which examined the impact of regressive legislative steps on judicial independence and democratic checks and balances.

For us in Northern Ireland, we do not need to go far back in history for a reminder of just how precious the role of an independent Bar is. Unfortunately, we also do not have far to look to witness attempts by the State to erode this independence.

In recent days during a debate in the Malaysian Parliament, a member of Parliament from the ruling coalition criticised the Bar Council, the Bar’s ruling body, for demanding greater government accountability and proposed that the Attorney General be automatically appointed as head of the Bar Council. This has understandably provoked widespread concern as the outcome would place the Bar under effective government control, an affront to international standards promoting the independence of lawyers.We dismiss perhaps too naively the threat of state intervention to our independence. The continued and concerted global endorsement for independent lawyers remains an imperative.

Regulation and Governance

Increasingly the bulk of challenges mounted by the State against the independence of the Bar relates to the topic of self-regulation of the profession.

The principle of self-regulation – as long as it is effective and co-operative with government – is established in UN Basic Principles on the Role of Lawyers adopted in 1990 which state that “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”

In my own jurisdiction, the Northern Ireland Assembly has passed the Legal Complaints & Regulation Act which imminently will receive Royal Assent and come into effect in 2017. Whilst welcoming the measures contained in the Bill which are designed to improve public confidence in the independence and accountability of the profession, we lobbied heavily during its passage through the Assembly on matters such as the potential for the incremental development of regulatory overreach and the blanket ban of a lawyer or former lawyer being appointed to the position of Legal Services Oversight Commissioner.

In our own case we are broadly content that the right balance has been struck between state appointed independent oversight and self-regulation. But this balance must be regularly assessed and scrutinised to ensure that there is no erosion of the constitutionally important independence of the profession.

More Prevalent Challenges to Independence

For many of us, aside from contesting the appropriate balance on issues of regulation, the risk of overt, widespread, and coordinated State action against our independence is not the greatest challenge we face.

Instead the prevailing challenges that we face relate to increasing commercial, competitive and technological change. An ever changing, expanding legal marketplace directly shaped by forces of globalisation, the reduction of public funding for legal services and the promotion of non-professional and largely unregulated modes of dispute resolution services causes us to stress test our structures and business models to ensure that our independence has not been compromised in pursuit of some other objective.

Since its origin in the 1920s, the Bar of Northern Ireland has been a collegiate organisation working from the Bar Library. The consequence of all barristers working together from the same building using communal facilities and sharing the same ethos enhances the expertise available to the public. Young members benefit from the advice and experience of more senior colleagues. The reverse is true as senior practitioners benefit enormously from the enthusiasm, insight and new perspectives of junior members.

Access to training, experience, continual professional development, modern research technology, expert library staff and state of the art IT facilities within the Bar Library system enhance the expertise of individual barristers and ensure the highest quality of service to clients. The Library provides the Bar with access to an unrivalled and unique range of legal materials, including a unique and self-compiled database of Northern Ireland law. This investment has enabled the Bar to give increased assurance to the judiciary that those appearing before them are in a position to fully advise the Court on appropriate legal authorities and legislation.

I have no doubt however that in Northern Ireland, our stout defence of an Independent Referral Bar, in its purest form, has come at a cost. We have not permitted alternative business structures to exist, we have not permitted direct public access and we have limited the scope for any secondary employment for our members. This has resulted in enormous commercial and competitive pressures on the profession, particularly for our Young Bar as they find it increasingly difficult to establish a practice in such a competitive yet restricted marketplace.

Whilst not mutually exclusive options, the challenge, therefore, for us - and I suspect for several others - is to protect the enduring values of independence yet at the same time to positively and constructively react to societal and commercial forces. We are attempting to find an acceptable solution which enables commercially–driven business models to exist without compromise or conflict with the values of independence we cherish so dearly.

An awareness of business realities, agile regulation and client-driven services are undoubtedly important, however a balance must always be struck to prevent loss of independence, ethics or quality. This challenge, more than ever looms large across the future of the Independent Referral Bar.

The Legal Services Board in England & Wales predicted in its 2009/10 Business Plan that “We expect to see a shift in the power balance from the professional provider/client relationship to an empowered consumer/commercial provider relationship”. The LSB have continued to monitor the outworking of this trend and in 2015, whilst noting the emergence and greater reach of “non-traditional providers”, they also highlighted the risks that arise from “a sales-based culture to legal services” in which “not all will understand the potential decisions about protection, quality and price that they may be making”.

These risks seem to increase with the advancement of technology and online legal services with clear signs of a digital divide between the confident and active “consumer” and the vulnerable who cannot access the internet and lack the capability to complete legal and administrative processes without significant levels of support.

The President of the UK Supreme Court, Lord Neuberger, at a meeting in Belfast in 2014 of the combined Bars of Ireland and Northern Ireland addressed this topic, saying: “The increased flexibility in the legal profession has been justified as being in the name of consumerism. It is hard to quarrel with the notion that legal advice and legal representation are intended to be as cheap and as accessible as possible to everyone. However, we must be careful of invoking consumerism to justify legal advice and representation, which is not properly independent, or which is second rate – or worse”.

In Northern Ireland we believe in general, we are observing and paying an appropriate cost for our adherence to the values of independence. Although it has caused commercial pressure and we must continue to innovate and be open to appropriate evolution rather than revolution, we have at least avoided being characterised by the transience and dubious morality offered up by Groucho Marx when he said : “Those are my principles, and if you don’t like them… well, I have others”.

In Northern Ireland, healthy competition exists which drives up standards and makes a virtue out of each barrister’s independence. Solicitors are well placed to choose the individual Barrister from the referral Bar which best meets the needs of his or her client. The fact that we receive instructions from members of a regulated profession provides extra assurance that barristers are competitively selected by reason of their ability and expertise. For us the reality remains that we are “only being as good as our last case”.

Conclusion

It is both a pleasure and an honour to be amongst you today in this great city. A city that is so evocative of both history and progress and which can be surveyed so gloriously from atop the 287 steps of the Scott Monument. In making my appeal to you today to fight to preserve the hard-won values of an independent Bar in the face of so many contemporary pressures, I am indeed reminded of the warning issued by Sir Walter Scott about prioritising transient over enduring strength when he said: “We build statues out of snow, and weep to see them melt”.

Let that not be the monument that our Bars leave behind.

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