CHAIRMAN'S NEWSLETTER - APRIL 1997

 

1. The purpose of this Newsletter. Is to bring Members up to date with news and matters of continuing interest and also to give those who enquire about the Association some historical and background information.

 

2. Origin of the Association. The Association is a direct successor (since 1978) of the Society of Local Government Barristers, which had been in existence since about 1945, and of the Bar Association for Local Government, which had been formed in 1977.

 

3. The current Constitution. This was approved unanimously by the Annual General Meeting on 22 June 1987 but it is known as the December 1986 Constitution. It widened eligibility for membership to all barristers and bar students holding a full time appointment in the Public Sector (including those in the civil service and in the armed forces). It was amended on 28 September, 1995 so as to extend eligibility for membership to barristers formerly employed in the Public Sector, but whose work has been taken over by a firm of solicitors and they became employed by that firm of solicitors so as to continue to carry out that work for their former employer. All Members should have had a copy, but if any Member does not have one, s/he should contact Mirza Ahmad.

 

4. Registration under the Data Protection Act 1984. This became necessary because all the Association's membership records are now held on computer. Our registration goes back to March 1987.

 

5. Membership. Our membership is about 100. If you know of any barristers who are not members, please forward their details to Mirza Ahmad so that he can invite them to join the Association.

 

6. Publicity. A Facts Sheet is available which is sent to prospective members. A booklet entitled "Barristers in Local Government and the Public Service" and a booklet which I wrote entitled "A Career in Local Government for Barristers" are also available for those enquiring about career opportunities and I get a fairly large number of such enquiries. A number of letters and articles have been written in various local government and legal periodicals drawing attention to the existence and activities of the Association. A comprehensive booklet about opportunities in employment has been published by the Bar Council in 1991 and is revised regularly. Most booklets are also obtainable at the ICSL and all the Inns. Volunteers are being sought to give talks to Law undergraduates in their final year about careers for barristers in employment. Please let Mirza Ahmad know if you are prepared to help.

 

7. Employed Barristers' Liaison Committee Meetings. These meetings are held shortly before every Bar Council meeting and they are very useful indeed. The "membership" of the Committee consists of members of each of the three Associations, who are also members of the Bar Council, namely BACFI, BALGPS and FDA, and of those employed barristers who are not representatives of any Association. We normally discuss tactics and matters of common interest relating particularly to Bar Council items. A few differences on emphasis arise occasionally between the Associations but on the whole the meetings perform a very useful function for the benefit of the employed Bar as a whole. The relations between all the Associations are excellent. In fact I am also a member of BACFI and of its General Committee and this is of advantage to both Associations.

 

8. The General Council of the Bar. The Bar Council has about 110 elected, nominated, ex-officio, or co-opted members and 14 out of these are employed barristers. Our Association has 3 elected members. Until the end of 1993 the term of office for employed barristers on the Bar Council was two years, but as from the beginning of 1994 it was increased to three years, in line with barristers in independent practice. This was one of the proposals I put forward to the Working Party under the Chairmanship of Martin Bowley QC when they were considering the Constitution and the Committee structure of the Bar Council in 1992/93. I had suggested that there should be an Employed Barristers' Committee to take the place of the informal Employed Barristers' Liaison Committee with comprehensive terms of reference but this was not taken on board. A recommendation for the reduction of the overall size of the Bar Council was turned down almost unanimously.

 

Currently there are about 9,000 barristers in independent practice and about 3,000 employed and non-practising subscribers. This would have warranted those in independent practice having about 66% of the seats on the Bar Council and those in employment or non-practising having about 33%. However, the actual proportions are much less! This is not very democratic, but it is unlikely to change unless our subscriptions are increased in line with those relating to independent practice.

 

9. Election of the Association's Nominees on the Bar Council. I was re-elected in 1993 and 1996 to serve on the Bar Council. I have been a member of the Professional Conduct and the Race Relations Committees. In November 1994 our then Hon. Auditor, Mirza Ahmad, stood for election and was duly elected for three years. He stands for re-election next month. Mirza Ahmad has been a member of the Law Reform and the Race Relations Committees.

 

10. Subscriptions to the Bar Council. Subscriptions by barristers in independent practice have been compulsory since 1986. Subscriptions for all employed barristers became compulsory on I April 1990. They are all tax-deductible. It is hoped that most of our employers are paying for them as they pay for the practising certificates of employed solicitors. If there are any who do not pay as yet they should be pressed very hard to do so as payment of the subscription is a condition precedent to providing any legal services to our employers. Please let Mirza Ahmad know if you experience any problems. Practising without subscribing is a disciplinary matter.

 

The Bar Council publishes and distributes free to Chambers and to employed subscribers monthly a very interesting News Sheet called "Bar News". It gives full details about the activities of the Bar Council and updates the Code of Conduct. The Bar Council is prepared to publish advertisements for vacancies at very modest charges. This may be of interest to your employing authorities and you might like to let them know.

 

11. "COUNSEL" The Journal of the Bar. This is published by Butterworths and it is FREE to Bar Council subscribers. If you are not receiving it already, you should contact Sylvia Rice at Butterworths. Halsbury House, 35 Chancery Lane, London WC2A I EL (0171-400-2500 Ext. 2582).

 

12. Revision of the Code of Conduct for the Bar. The completely revised fifth edition of the Code came into effect on 31 March 1990 and has been supplied free to subscribers. Non-subscribers can buy a copy from the Bar Council. The fifth edition treats employed barristers more in line with those in independent practice (except for rights of audience in the higher courts) and should be studied very carefully. Of particular significance is paragraph 401.

 

Two amendments are of particular relevance to employed and non-practising barristers: Non-practising barristers can now work in solicitors', accountants' and other offices and give legal advice to their employers' clients (but they must not describe themselves as barristers without qualifying that description by the addition of the words "not practising" (see paragraph 212) and must not appear in any court as counsel) and paragraph 607 of the Code (conduct with witnesses) no longer applies to employed barristers.

 

13. Employed Pupillages. Some years ago I succeeded in persuading the Consolidated Regulations and Transfer Committee to allow up to six months pupillage in employment to count, month for month, as pupillage served in Chambers. Until that time, six months pupillage in employment counted as three months served in Chambers. The problem now is that there are not many registered barrister pupil-masters in employment and particularly in local government, which is a solicitors' stronghold. My aim has been to persuade the Bar Council to allow a second six months pupillage to be served with an employed solicitor, as an alternative, to enable more young barristers to compete for jobs with articled clerks or solicitors. My proposal was considered by a special meeting of the Professional Standards Committee in the context of the report of the Working Party on Pupillage, which proposed some fundamental changes, including much stricter controls over pupils and pupil-masters. In the light of the stricter controls which have been incorporated in the fourth and fifth editions of the Code of conduct it was not considered desirable to allow solicitors, over whom the Bar Council has no control, to become pupil-masters whilst controls over barrister pupil-masters became much stricter.

 

I would recommend Members with more than five years' call to apply for registration as employed pupil-masters. Application forms are obtainable from the Secretary to the Joint Regulations Committee at the Bar Council. A CV should accompany your application. The fifth edition of the Code of Conduct contains new provisions on pupillage and those concerned either as pupils or as pupil-masters should study these. The CPS is operating a scheme of sponsoring pupils to serve their first six months in Chambers on their undertaking to complete it in the Service and stay there for a fixed period thereafter.

 

14. Brief Summary of recent decisions and changes of policy by the Bar Council. It is no longer compulsory to have a clerk, to operate from Chambers or to belong to a circuit. However, those with less than three years' independent practice cannot start independent practice by themselves and there must be someone with more than five years' independent practice with them. However, the Bar Council can grant exemptions to those with long experience in employment, if appropriate. Restrictions on advertising and several other restrictive practices have been virtually eliminated.

 

There is now direct professional access to counsel from certain other professions, e.g. accountants, architects, surveyors and town planners where litigation is not involved. A system for paying pupils in Chambers is now in operation. Advertising for pupillages and tenancies through the Bar Council is now compulsory. The "cab-rank" rule has been strengthened in the fifth edition and extends to briefs and instructions of any kind and to all work whether legally aided or not. See also the item on the Employed Bar Working Party. The Equality Code for Chambers is also operating in many progressive chambers (along with practice management standards).

 

15. White Paper on Legal Services: A Framework for the Future. The White Paper was published on 19 July 1989. I wrote to the Lord Chancellor broadly agreeing with the response of the Bar Council but making the following comments of particular concern to us:

a) The exercise of rights of audience by employed barristers who have completed their pupillage should not be more limited than that of those employed solicitors who will be duly qualified under the proposed rules for education and training to be advocates in all courts;

b) The Bar Council should be specifically designated in the statute as being able to grant the right to barristers to conduct litigation in the same way as the Law Society would be so that it can consider granting us that right ( this is something that Mirza Ahmad has agreed to take a lead on for the Association);

c) Non-independent barristers should be permitted to be employed by solicitors. or to form partnerships with solicitors or with other non-independent barristers and be able to operate on similar lines as solicitors currently do;

d) Justices' Clerks should continue to be eligible for appointment as Assistant Recorders in criminal cases;

e) Statutory provision should be made to remove the present restriction on dual qualification as barrister and solicitor (but not concurrent practice as both);

f) Barristers should be able to act as "Commissioners for Oaths" and to certify documents in the same way as solicitors (now approved); and

g) Statutory provision should be made enabling the Bar Council to introduce compulsory practising certificates for all practising barristers (including employed barristers). This has been approved for the independent Bar but not yet for the employed Bar.

 

16. Rights of Employed Barristers and Barristers not in Independent Practice. I submitted a paper for consideration by the Professional Standards Committee on 15 November 1989. This paper had received the approval of the Employed Barristers' Liaison Committee. Unfortunately it had a very cold initial reception by the PSC, not only because of the radical proposals contained in it, but also because the publication of the Bill was imminent and members of the Committee did not wish to consider fundamental changes of policy before having a chance to study the Bill. A special meeting was arranged at very short notice on 5 December 1989 for the Employed Bar to meet the Code Working Party under the chairmanship of David Latham QC (as he then was) who was then also Vice-Chairman of the PSC, but it was made clear to us that the Working Party were only prepared to discuss drafting details of the new Code rather than matters of fundamental policy.

 

Representatives of all the associations of employed barristers were present and we did touch informally on matters of fundamental principles. A promise was given to us that we would be given the opportunity to put forward our policy proposals for consideration after the enactment of the Courts and Legal Services Bill, when those in independent practice would have a better idea of where they stood themselves.

 

17. The Employed Bar Working Party. This was set up by the Professional Standards Committee in March 1990 under the chairmanship of Mummery J. following our meeting on 5 December 1989 with David Latham's Working Party referred to above. Its report, extending to 50 pages, was unanimously approved and adopted by the Bar Council on 15 September 1990.

 

All of the employed barristers' associations accepted the proposals of the Working Party as an interim measure and as the best that could be hoped for at that time. From our point of view the most disappointing part of the report was that barristers employed in solicitors' offices are to be treated as non-practising and, as such, are to be prevented from appearing as Counsel in any court. This recommendation has been incorporated in an amendment to the Code with effect from 22 October 1990 (paragraph 212).

 

18. The Courts and Legal Services Act 1990. The Bill was published on 7 December 1989 following the Green and White Papers and an enormous amount of discussion and representations by the Bar Council and others. It was enacted on 1st November 1990 and the Part on Legal Services was brought into force by April 1991. No attempt can be made to summarise it here, but from the employed barristers' point of view it is very disappointing that, in spite of our representations, the Bar Council was not included in the Act along with the Law Society as a body able to grant to its members the right to conduct litigation, although the Bar Council has agreed that it would apply to be authorised to grant the right to litigate to employed barristers.

 

For an application to be considered it has to be accompanied by a Code of Conduct in relation to litigation. Our Honorary Treasurer, Mirza Ahmad, has undertaken to attempt to prepare a draft Code. The Law Society will be able, within the framework of the Act, to grant rights of audience in all courts to suitably qualified solicitors. It would be a matter for the Bar Council as to what additional rights of audience it would allow employed barristers to exercise (if any).

 

A very welcome provision in the Act allows barristers to administer oaths in the same way as solicitors can (Section 113). This is something we had pressed for, for the last few years. This new statutory provision was originally discussed by the Professional Conduct Committee on 23 June 1993 when it was decided that, as an employed barrister could only provide legal services to his employer and as an affidavit can only be taken in matters in which he is not interested, an employed barrister could not act as a Commissioner for Oaths at all! I queried this ruling and as a result the matter was reconsidered by the PCC on 15 September 1993. The Committee agreed that the taking of an affidavit was not a legal service and that, consequently, barristers in independent practice could act on payment of the prescribed fee, without the intervention of a solicitor and employed barristers could similarly act in cases where their employers were not involved. (See The Commissioners for Oaths (Authorised Persons) (Fees) Order 1993 S.l.1993 No. 2298).

 

19. Submission to the Lord Chancellor by the Head of the Government Legal Service and the Director of Public Prosecutions. In May 1991 the Head of the CLS and the DPP submitted to the Lord Chancellor that Rule 402.1 (c) should be deemed not to be approved. This would give barristers in the CPS and the GLS the same unrestricted rights of audience as are enjoyed by barristers in independent practice. The submission came as a surprise to all, but subsequently our 1 Association made its own submissions in July 1991.

 

On 4 October 1991 the Vice-Chairman and myself appeared before the Lord Chancellor's Advisory Committee to give oral evidence in support of our submission. BACFI gave oral evidence, on the same day and the Bar Council gave oral evidence on several separate occasions. The Advisory Committee in its report which was published in 14 April 1992 concluded that it would not be right at present to give extended rights of audience in the higher courts to barristers employed in the CPS, the SFO, the GLS, in local government or in commerce and industry. The Committee's advice to the Lord Chancellor was therefore that the Bar's rule 402.1(C) should be deemed to have been approved.

 

The Lord Chancellor requested the Committee to consider further its advice in relation to employed solicitors and the submission of the Head of the GLS and the DPP. In June 1995 the Committee gave further advice in relation to employed solicitors. The Committee was split 9 against extended rights of audience for employed solicitors and 8 in favour of such rights. As most will know, since then, certain solicitors have been given limited, but extended, rights of audience in the High Courts. The employed barís application is still being considered by the Advisory Committee.

 

20. Correspondence with the Director General of Fair Trading. In 1989 I was in correspondence with the Director General of Fair Trading and it was encouraging that he could see no objection in principle to non-independent barristers being in partnership with, or being employed by solicitors. He did not see this as undermining the principle of retaining the independent Bar as a consultant profession. The Director General in his advice to the Lord Chancellor under Section 31(5) of the Courts and Legal Services Act 1990 concluded that Rule 402.1(c) has the effect of significantly restricting competition for supplying the Crown with prosecution advocacy services in the higher courts.

 

21. Compulsory Competitive tendering of Local Authority Legal Services. Local Authority barristers will know that CCT of Legal Services was taking place and that the first contracts commenced on 1st April 1996 in London Boroughs, Metropolitan Districts and Counties anal Shire Districts where no re-organisation was planned. Some authorities have already undertaken voluntary competitive tendering or have encouraged management buyouts or take-overs by firms of solicitors.

 

The position with barristers is that whilst they are permitted by the Code of Conduct to be employed by a firm of solicitors to give advice and draft documents for any of the firms clients, they are prevented by paragraph 212 of the Code from appearing as counsel in any court because they arc deemed to be "non-practising". I was very concerned that some barristers, who are employed as advocates by a local authority, might find themselves being employed by a firm of solicitors which has taken over their work.

 

In 1992 I wrote to Anthony Thornton QC, tile then Chairman of the Professional Standards Committee, seeking a waiver for such barristers so that they may continue to represent their former local authority employer in court. The initial reaction of the Committee was both negative and confused, but no formal decision was taken. Instead, the then Chairman of the Committee was asked to meet us to discuss the problem and try to find a way forward. We had a meeting with him early in 1993 at which we agreed not to press for a decision of the Committee until the publication by the Lord Chancellor and the designated judges of their decision on the Law Society's application and the reference of tile DPP/GLS.

 

At that time the decision was thought to be only a few days away. However, as the decision was put off several times since, I asked Anthony Thornton QC for another meeting in September 1993. I updated him on the CCT position and I prepared a draft amendment to the Code which would enable those affected to be treated as (practising) employed barristers whilst working within the firm of solicitors which has taken over their local authority advocacy work. The amendment could be used as an alternative to individual waivers.

 

The meeting was held on 25 September 1993 and it was attended by then Honorary Treasurer and myself on behalf of the Association and also by the two CPS representatives on the Bar Council. Anthony Thornton QC advised us again that if we pressed the Committee for a decision before the Lord Chancellor's decision on the Law Society's application the Committee was likely to turn down our suggestion. He asked about the likely number of barristers who might find themselves in the position of having to work for a firm of solicitors and we said that we thought it might be between six and twelve. His view was that if the numbers were fairly small there was nothing to prevent any affected individuals from applying to the Professional Conduct Committee for a waiver of the restriction in the Code. The PCC has no power to give general waivers, as that would be tantamount to an amendment of the Code which is a matter for the Professional Standards Committee.

 

It seems that the only way to reverse the effect of paragraph 212 of the Code which prevents a non-practising barrister from appearing as counsel in any court if the Bar Council is not prepared to amend it would be to ask the Lord Chancellor to give a direction under Section 31(4) of the Courts and Legal Services Act 1990. This would involve the same procedure as that adopted by the DPP and the GLS in relation to rights of audience in the higher courts. This would be a very drastic step and it should not be taken until a decision is taken by the Lord Chancellor and the designated judges on the question referred to them by the DPP and the GLS.

 

The Chairman of the Professional Standards Committee in 1994 was Michael Blair, who is an employed barrister and a former Chairman of BACFI. He was quite familiar with our problem and I wrote to him requesting that the PSC makes a decision on the question as soon as possible. The Committee considered the matter on 23 February and 23 March 1994 and was sympathetic to the points raised by the Association and expressed the view that any employed barrister in the public sector whose work is taken over by a firm of solicitors as a result of CCT should have a waiver to enable him to continue to appear for his former employer or for other clients of that firm of solicitors, who are public authorities.

 

The same view is also applicable where the competitive tendering comes about by voluntary means or by, for instance, a management buy-out. Each case will be considered on its merits but save in exceptional circumstances all grants of waivers will be time limited. Requests for extensions of time would, however, be considered sympathetically. Individual waivers will be necessary. Application for waiver should be made to the Secretary to the PCC giving full details of the circumstances giving rise to becoming employed by a firm of solicitors.

 

22. Consultation Paper on the Implementation of CCT for Legal Services December 1993. The DoE submitted to the Association, just before Christmas 1993 a bulky document requesting comments by 18 March 1994. 1 submitted the Association's response on 9 March 1994 but, not surprisingly, they do not appear to have taken much notice of our comments.

 

23. Education for the Bar. On 11 June 1994, the Bar Council agreed in principle to undertake a number of fundamental reforms to the present system of education and training for the independent Bar. The decisions were reached after lengthy consultation within the profession and with external bodies. The reforms include:

(a) the ending of the monopoly of the Inns of Court School of Law and the validation of a number of academic institutions to provide vocational training for practice at the independent Bar;

(b) the introduction of an element of common vocational training for prospective barristers and solicitors if and to the extent that it is compatible with vocational training for the independent Bar; and

(c) deferring call to the Bar until after the completion of six months pupillage.

 

The governance of education has been transferred to the Bar Council and a new Head of Education and Training recruited, together with appropriate support staff. The Bar Council has examined all the responses received to the Validation Consultation Paper and a very small number of academic institutions for teaching the Bar Vocational Course.

 

One of the consequences of the validation of academic institutions to provide vocational training for the Bar would be the substantial increase in the number of students undertaking and successfully completing the course, compared with the present restricted numbers. It is therefore anticipated that the demand for pupillages will far exceed the availability of places. In an attempt to avoid responsibility for the problems which large numbers of young barristers, who would be unable to secure a pupillage, would be facing, the Bar Council has considered (and rejected for the time being) any change to the present regulations so as to defer call until six months' pupillage is completed. If the proposals are ultimately approved, they would result in large numbers of students never being able to be called to the Bar after their successful completion of the vocational course

 

24. Continuing Education. The Bar Council has approved a scheme of compulsory continuing education for all barristers who start independent practice on or after 1st September 1996. Within the first three years of independent practice each barrister must undertake the following continuing education on approved courses or in other approved ways:

 

(a) at least 6 hours of training in advocacy skills;

(b) at least 4 hours relating to professional conduct/ethics;

(c) at least 18 hours on a course or courses in which there is a substantial element of case preparation, practice and procedure in areas in which the barrister currently practises or intends to practise; and

(d) the practice and principles of accounting, unless an approved course was completed during the pupillage year.

 

The question of applying a similar scheme to employed barristers has been raised and an undertaking has been given to us that the subject will be discussed with us before it is finally adopted.

 

25. Pupillage Applications Clearing House (PACH) Scheme. The Bar Council on 8 July 1995 approved the PACH Scheme. It does not apply to pupillages in employment. It is similar to the Universities and Colleges Admissions Service (UCAS). It has the following features:

 

(a) there is a single application form;

(b) there is a unified timetable for pupillage applications, interviews and offers;

(c) the first round of selection is followed by a pool system for candidates unsuccessful in the first round;

(d) there is a limit on the number of Chambers to which applicants may apply;

(e) interviewing and selection criteria remain entirely a matter for Chambers;

(f) the PACH office will:

(i) duplicate application forms and send them to Chambers;

(ii) provide a channel for communicating offers and acceptances;

(iii) run the pool system.

(g) there is provision for deferred applications; and

(h) the scheme is not compulsory.

 

26. Judicial Appointments for Employed Barristers. The Head of Judicial Appointments has clarified the legal position about the eligibility of employed barristers for appointment to judicial office. The Lord Chancellor's view is that:

 

"since all barristers acquire rights of audience before all court on call to the Bar, all barristers possess at call all the qualifications listed in Section 71(3) of the Courts and Legal Services Act 1990. Moreover, Section 71 (6) of the Act explicitly provides that any period during which a person who holds a right of audience is prevented from exercising that right (otherwise than as a result of disciplinary proceedings) shall nevertheless count towards the period of time for which that person will be considered to have held the qualification in question where a period of qualification is a statutory requirement for judicial appointment. In effect, for the purposes of determining eligibility for judicial appointment, the fact that a barrister is employed has no bearing whatsoever either on his possession of a right of audience or on his possession of any of the qualifications listed in Section 71(3), neither does it have any bearing on the length of time for which he is considered to have held them."

 

27. The Administrative Law Bar Association. Membership is open to any member of the Bar and any solicitor interested in Administrative Law. Applications for membership can be made to Honorary Secretary, at 39 Essex Street, London WC2R 3AT. Telephone 0171-583-1111. DX 298 CHANCERY LANE. The Association is very well organised and there are lectures and discussions in which judges practising barristers a