Response of the North Eastern Circuit to the Consultation Paper issued by the Bar Council in October 1998
General
The Response of the North Eastern Circuit is divided into two parts. The Consultation Paper has been considered by 2 committees of the Circuit. This Response concentrates upon the position of the Criminal Bar and is prepared by the North Eastern Circuit Committee on Criminal Legal Aid Work . Annexed to this Response is the Response of the North Eastern Circuit Civil and Family Work Committee.
It will be seen that the Circuit sees the way forward as involving differing considerations for different sections of the Bar.
We are convinced that, in criminal work, the Circuits could undertake and tender for Advocacy Contracts on behalf of their members and could administer both the performance of advocacy and the payments for advocacy as outlined in our proposals of 14th July 1998.
It is important to realise that our proposals do not create a closed shop. Although the Circuit would negotiate and contract for Advocacy services in its area, other Counsel from other Circuits and Solicitor advocates would still be able to work under and be paid out of the negotiated contract. The only requirement would be that they should accept the contract fee structure (of a graduated fee type) and be subject to the conduct standards which would be required of all advocates working under the contract.
What follows is of course subject to the Government’s proposals in relation to a Public Defender Scheme and in relation to the proposals for legal aid contracts with franchised Solicitors alone. Both of these schemes would sound the death knell of the Criminal Bar as we know it for reasons too obvious to require to be stated. The former would abolish the distinction between Solicitor and Counsel in the criminal field. The latter would make the Solicitor the paymaster of the Counsel and would quickly lead to salaried in-house advocates or would enslave Counsel to the yoke of the Solicitor’s profit costs.
The Answers to the Questions posed in Section 7 of the Consultation Paper
Q2 Option 1 is preferred if the Bar is able to retain a ring-fenced advocacy scheme based on a system of graduated fees.
Option 4(c) is the only possibility if the Bar is unable to retain a ring-fenced advocacy scheme. Only this option would enable the Bar to compete with Solicitors for criminal work on even terms. It would of course entail a dramatic change in the way in which we conduct our work and would involve us in employing staff to do the work which Solicitors currently do. The Bar could still retain its independence in the same way that Solicitor Advocates theoretically retain theirs. The Bar would have to be able to obtain legal aid franchises in order to compete with Solicitors for the block contracts.
A further option (though tantamount to a step along the road to fusion) might be for the Bar (in combinations of Chambers or on a Circuit basis) to enter agreements with Solicitors firms to tender jointly for the legal aid block contracts. These joint arrangements could contain legally enforceable provisions for the remuneration of the Bar out of the contract sums so as to preserve the requirement for ring fenced advocacy fees. However, unless the Bar’s involvement was on a very wide basis, the drawback would be that groups of Counsel would be tied to a limited number of firms of Solicitors. Unless done on a Circuit-wide basis, the prospect of the Bar’s independence being compromised in such small joint arrangements is considerable.
Q3(3) Chambers would have to introduce systems similar to those used by franchised Solicitors. The rules governing Solicitors and Solicitors’ clerks would be adapted to cover the staff who would be employed by the Bar to carry out the work currently done by Solicitors. It is important to realise that the present Chambers system could not survive since the number of legally aided cases needed to support the number of Counsel in Chambers would be equivalent to the workload of a large number of Solicitors’ firms. Accordingly the block contracts would have to cover a very substantial volume of work.
We predict that the inevitable effect of Counsel tendering to do the whole of the criminal work done normally by solicitors in addition to the advocacy and advisory work currently done by the Bar will be to force Chambers to amalgamate and to tender jointly for legal aid contracts covering a very wide area of work.
Furthermore, it would be unlikely that a single amalgamated Chambers would be able to do both Prosecution and Defence work. Thus the Criminal Bar would polarise.
Q3(4) Increasing overheads would be inevitable. However the tender would take such additional costs into account. The advantage of the amalgamated Bar over Solicitors would be in economies of scale when tendering. Initially, huge costs would be involved in setting up the necessary administration and in forming the quasi-Solicitor organisation necessary to do the Solicitors’ work.
Q5 Please see the Response of the North Eastern Circuit on Rights of Audience. Present problems and future fears are there set out.
Q6(1) Direct contracts are of course preferred. Sub-contracts with Solicitors would, unless done on a Circuit-wide or Area basis, lead to Chambers having to enter into a multiplicity of sub-contracts, to conflicts of interest and to fee level and payment problems. Theoretically, it may be possible to devise a standard form of sub-contract to deal with these problems (to oblige Solicitors to deal with the Bar on a fair basis) but the forces of competition might lead to private arrangements between some Solicitors and some Chambers which would undermine the norm for short term gain.
Q6(2) Ideally the sub-contract should be for Counsel’s work. Only if we are forced to tender against Solicitors (see paragraph 7 above) for all the criminal legal aid work would the question of sub-contracting the Solicitors’ work arise. If it did, the options would be to sub-contract to individual firms or to set up an in-house organisation to do the work.
Q6(3) See paragraph 10 above. The ideal would be preservation and extension of the Graduated Fee scheme and payment direct from the LAB or from the LCD. Alternatively any contract with the Solicitor would have to be based on Graduated Fees and be legally enforceable.
Q7 We favour contracting by the North Eastern Circuit either on a Circuit wide basis or on behalf of its members in defined areas of the Circuit and on behalf of all members of other Circuits and Solicitor advocates who may wish to practise on the Circuit under the terms of the contract. However we have considered the possibility of the Bar Council or the Criminal Bar Association tendering nationally on behalf of all Criminal Counsel and would be attracted by that idea provided that the contract related only to the administration of fee payment and the maintenance of standards of conduct. The essence of our proposal is that Counsel are permitted to maintain the status quo ante in their relations with Solicitors and that the involvement of the Circuits, the CBA or the Bar Council is merely in relation to the system of tendering for the overall contracts and of ascertainment and payment of fees. The basis of our thinking is that the provision of Crown Court advocacy services should be by negotiated contract rather than by tender. Under our proposals, the North Eastern Circuit would enter into annual negotiations with the appropriate body as to the contract figure for the agreed volume of work for the coming year within certain agreed constraints. That contract figure would be subject to a "value for money" judgement by an independent party (eg: Arthur Anderson). The Circuit would be responsible for providing all Crown Court advocacy services on Circuit for that period at a fixed price and for maintaining standards of advocates. Arrangements would be made for other counsel from other Circuits and Solicitor advocates to be paid out of the contract amount. They would of course have to comply with the Circuit’s advocacy standards.
Q8 We do not see why high cost cases need be singled out for special treatment. A separate system of tendering separately for such cases should be devised. The SFO currently deals with such cases on a tender basis. We do not see why they cannot be dealt with on the basis of an agreed hourly rate and tendering based on the predicted time which the case will take to prepare and to conduct. Though we would prefer to negotiate with an arm of Government, we cannot see any real drawback in negotiating with Solicitors in such cases so long as the parameters of the negotiations were carefully drawn up and applied nationally in all such cases.
Q9 We favour legally binding contracts.
Q10 No.
Q11 Amendments required to allow organisations to tender and contract on behalf of Counsel, to deal with contractual relations with Solicitors and to ensure that all barristers tender and contract on the same basic criteria.
The Bar Council would have to be able to control the type of contracts or arrangements which Counsel may enter and those which he may not enter.
Q12 Setting up the umbrella contracting and tendering organisation. Starting links between Chambers and encouraging a move towards joint administration of fee collection eventually to be handed over to the umbrella organisation.
Q13 We regret that in the time available we have not been able to consider steps to control costs.
Q14 In criminal cases, these issues should not arise and are unlikely ever to be in the public interest.
Q15 Ditto.
Q16 For comments on Questions 16 - 20, please see the Response of the North Eastern Circuit Civil and Family Work Committee.
Q21 We wish to remain an exclusive referral profession subject only to
the matters suggested in relation to Civil and Family work. We may however be forced by
this Government to think otherwise.
