Responding to the Consultation
It has been a busy few days…
Herewith my response to the BSB Consultation. I hope it helps to clarify your own views. If you would like to borrow any of it, please feel free.
Name: Simon Myerson QC
Contact details: email@example.com
I am not responding on behalf of an organisation.
I am content for my position to be made public. Indeed, I am publishing it.
I have answered the questions below.
- I am submitting this response in my own name, rather than via my Chambers or Circuit. I am doing so because I am one of the few barristers left who maintains a fully mixed civil and criminal practice (virtually 50:50) in Silk. I hope, therefore, that my experience may be of some assistance.
- I have also served on the BSB’s sub-committees for many years and I understand, I think, the way it works. I know the people involved and I trust them to do a proper job regulating our profession. I do not subscribe to conspiracy theories and I do not regard the BSB as a Regulator owned by the Bar, although I believe it regards itself as one sensitive to professional concerns, and that it should so regard itself.
- I regard the timing of this consultation as unfortunate. In my view it would have been both straightforward and wise for the BSB to explain the timing. It appears to be a reaction to the recent ‘industrial’ action. That, of course, does not provide any basis whatever for dismissing the proposals – it is axiomatic that new problems arise from new situations. However, the action was taken by the Bar as a result of a quite unprecedented attack on justice, on fees and on the Government’s relationship with the Bar, which had previously been marked by at least some willingness to listen on the part of the former. That much was, surely, apparent to the BSB. As such, out of simple self-interest a little more explanation was warranted.
Current Position and need for change
- Currently, the return of instructions involves a balancing of the following factors: client confidence in the barrister; the duty to the Court not to advance a case the barrister knows to be false; the interests of justice as expressed by the Court; payment. However, the latter is normally treated as a termination of the retainer, rather than as a return. Hence, another barrister will be briefed afresh, rather than picking up an existing case.
- In the context of publicly funded work a return is not treated as a termination of a retainer. My experience during the recent action included advising members of my circuit who had been compelled to return work when a conflict arose. It was clear that, in those circumstances, the LAB would not pay a further brief fee and that, in consequence, there could not be a new “instructed advocate”. Had it been the position that there was a new instructed advocate, I would not have regarded the work as a return. Rather it would have been a new set of instructions, to a new instructed advocate.
- The current guidance therefore permits counsel to treat their instructions as terminated by a unilateral variation in payment terms. That is also consistent with the normal contractual position.
- Paragraph 8 of the consultation assumes the existence of a presumption that the guidance is based on decisions as to fees being made by the client. I am not convinced that such a presumption exists. Nowadays, civil work can be funded by third parties and some of my cases are so funded. I have always taken the view that unilateral changes to funding arrangements would terminate my retainer at my option and I have said so to the clients and solicitors involved. It is not my job to ensure that the actual client is properly covered for fees by those who fund him – it is my job to deal with his case. The client is responsible for ensuring that payment can be made. That is so both in cases where the third-party funder takes a cut of any damages, and in cases where they do not (for example, CFAs without ATE Insurance).
- Any civil case involving a third-party funder is, in these times when the government no longer regards it as a duty to ensure access to justice via state aid, likely to be with a commercial organisation. It would normally, although not always, involve a no-win no-fee type arrangement. In every such case the barrister now has the right to propose terms of engagement. Solicitors have recently asserted that they will not agree various versions of standard terms, particularly as regards personal injury work. That has led to negotiation with different barristers and different sets of Chambers taking different views about different solicitors. If agreement cannot be reached then the barrister does not accept instructions from that firm/funder.
- The difference insofar as legal aid is concerned is that the funder holds a monopoly position. Save, perhaps, for a fortunate few, doing criminal defence work means doing publicly funded work. That has a double impact: it means that clients have no influence over fees and it means that there is no work save at the rates the government are prepared to pay.
- The purpose of the above analysis, which differs relatively little from the BSB’s save for questions of emphasis, is to reframe the balancing exercise referred to in paragraph 10 of the consultation. I believe that the balance in the consultation is inaccurately identified. The decision made by the third-party funder will not simply address the single case, which is the basis of the exercise in the consultation. It will address all similar cases, at least. That means that every client represented by the barrister at the time the decision is made will be affected.
- Because a huge number of those practising at the criminal bar now live on a financial edge, this multiple effect is an important consideration, to which I cannot find reference in the consultation. It is far from an exaggeration to say that the effect of requiring barristers to carry on regardless may be to remove that barrister’s services for every other client. But even that doomsday scenario is not the main point. All the published research suggests that a demoralised, disregarded workforce performs sub-optimally. Barristers at the publicly funded bar do not feel valued. Their Instructing Solicitors – defence or prosecution – are under severe pressures. Mistakes, misjudgments and even legitimate differences of opinion are not quietly resolved, Rather they become flashpoints as the time and money required to resolve them is unavailable. In those circumstances, unilateral changes in remuneration – always downwards – add disproportionately to the pressures and disproportionately impede performance.
- It seems to me therefore that the analysis in the consultation is incomplete. To the ‘considerations’ that the consultation addresses I would add:
- The effect on the barrister as an individual;
- The effect on other clients to whom the barrister, at that time, owes similar obligations.
- I also believe the analysis is insufficiently rigorous. It correctly identifies the fact that, in a publicly funded case, the client has no responsibility for the unilateral alteration of terms. However it fails thereafter to address the issues of how that situation is dealt with in private civil work. That means that a contractual solution is simply not contemplated. Moreover, in my opinion, the consultation does not sufficiently acknowledge or deal with the monopoly position of the government.
- Both these matters are important. In a non-monopoly situation, the obvious answer would be that an alteration to the terms of the contract would have to be agreed with the client, or at least be one which was directly explained fully to the client by the funder and which could be challenged at the instance of the client. Equally, in a non-monopoly situation, a client who wanted to retain the services of the barrister and solicitor could seek another funder, perhaps with a stay from the Court whilst this was done.
- In the consultation, neither step is contemplated. I believe that to be wrong: in a civil case there would normally be no question of the funder for one side owing a duty to the other side. In publicly funded criminal work (and perhaps in family work as well, about which I lack sufficient expertise to speak) the government does owe a duty to the victim to ensure that the trial is quickly and fairly heard.
- Accordingly, the effect of the analysis within the consultation is the unstated one of making the barrister responsible for the bad faith of the funder. I use the word bad faith advisedly and base it upon the recent consultations run by theMoJ. It seems to me that bad faith is evidenced by the following, and that consideration of all those matters together makes bad faith the only conclusion that can properly be drawn about the reasoning behind the consultation:
- The stated aim of the consultation was to meet Treasury targets for the coming year. The deal just done makes no alteration to fees in most cases and halves the cuts to solicitors’ fees. Therefore, either the stated aim of the consultation was false, or the figures on which it was based are unreliable.
- The MoJ has not indicated which alternative is correct. Indeed, although it is the funder owing the obligation to the client, it has not said anything.
- The Bar Council’s own analysis suggests the figures were wrong. That is based on statistical evidence by Prof Chalkley, made available to the Ministry. The Ministry, of course, could always have obtained its own statistical evidence.
- Therefore, either the Ministry has ignored the statistics or it has internally acknowledged them to be accurate but failed to say so. That latter alternative is, patently, the very epitome of bad faith.
- The impact assessments prepared by the MoJ have been rigorously scrutinised and criticised by the Bar. That criticism is, in my view, compelling. Tellingly, the MoJ has simply not dealt with the criticism. Instead, it has ignored it.
- One is left, therefore, with the unpleasant but seemingly accurate view that the MoJ is doing this because it lacks the facility to acknowledge that its initial plans were unnecessary. That, in turn, suggests that the plans had no rational basis but were persisted with in any event. When one factors in the absolute refusal to engage with the substantive arguments in any meaningful way, one is left with an explanation of bad faith, and nothing else.
- Accordingly, the proposal in the consultation is that the Bar takes responsibility for the bad-faith acts of a monopoly funder about which it can do nothing. I do not accept that using the Handbook to impose that responsibility is necessarily lawful. But, on the assumption that it is (again, I leave that issue to others), it is a bad idea. It is not the function of professional rules to make individually employed citizens responsible for the acts of government. The Bar cannot make the government act in good faith. Consequently, it will always be at risk of having to bear the financial burden of others simply at the whim of government. That cannot be right. In my view, if that result is what the BSB wants (and I profoundly hope it is not) then it ought to seek legislation to enact it.
- Moreover, by failing to recognise the real effect of the proposals, the consultation inaccurately states the balancing exercise to be performed. Viewed in the light of the government’s behaviour, the proposals require the Bar – at its own expense – to cover up the real consequences of governmental bad faith. Given the barrister’s obligation to promote the interests of the rule of law, access to justice, and the administration of justice, I would have expected that all matters pertinent to those obligations would have been considered. That seems not to have been the case.
- Finally, the proposals fail to consider the role of other organisations and bodies with equivalent obligations to promote the interests of the rule of law, access to justice, and the administration of justice, particularly the Courts. It is, I think, a mistake not to do so. For example, it may be possible to reach an agreement with a client that, in the event of a unilateral change of terms, the barrister would forthwith seek a stay of the case from the Court. The Court’s decision, if a refusal would lead to an absence of representation, might be affected by that agreement.
- I accept that the issue is one of weighing competing factors. As I have said, it seems to me that the various competing factors referred to in paragraph 13 of the consultation have not been fully or accurately identified or weighed.
- I do not believe that any change is required. However, on the basis that additional clarity is necessary, it seems to me that the various factors should be properly set out and should include:
- Whether, in view of the profession as represented by the Bar Council, the changes to remuneration are justified by the express purposes of the alterations.
- Whether those expressed purposes can be met, from the same departmental/organisational budget, but in another way.
- The effect on other clients of the barrister, taking into account the barrister’s own circumstances.
- The effect of any terms agreed between barrister and client about what would happen if such alterations were made.
- I have not attempted to draft the relevant guidance, because I know my limitations. However, I do want to address paragraphs .6 and .7 of the proposed new guidance.
- .6 imposes an obligation which I do not think a barrister has, or ought to have, namely to consider prejudice caused to witnesses for the other side. In some ways, it is a barrister’s duty to cause prejudice to witnesses for the other side, albeit that we must do so properly. But there is no current obligation, for example, to consider the prejudice to prosecution witnesses when a defendant seeks an adjournment. That is a matter for the Court. It may very well be in the interest of the criminal client to seek a course which prejudices the other side’s witnesses and I do not presently see how obliging a barrister to consider that as a reason for doing or not doing anything is consonant with the central obligation to the client.
- Moreover, in the protocols agreed for the recent days of action the same position was addressed in what I believe was a better way. Barristers were obliged to consider issues of vulnerability on the basis that vulnerability was an issue that went to the Courts’ obligation to ensure justice. That had the advantage of leaving the responsibility where it properly lies – contrast to paragraph 16c of the consultation, which I believe to be wrong.
- If that protocol position were adopted in the context of this consultation, one could add to paragraph 21 above:
- The vulnerability of any witness and the effect on the administration of justice of any course the barrister adopts.
- The difference between that and the protocol is that vulnerability is not an automatic reason to continue but a factor to take into account, amongst others.
- To an extent, .7 recognises the effect on the individual. It may be that this was always intended and that the consultation did not address it because it was intended to keep it as short as possible. However, it seems to me that including any means of redress the barrister has is more likely to cause confusion than clarity and comes close to the type of micro-regulation I understood the BSB to wish to avoid.
- What is prejudice? Is it monetary only? Does it include morale? Does effective redress mean a group judicial review, or individual negotiation with a manager? How is effective to be judged? Judicial review is famously not concerned with merits but with a decision being unjustifiable/unreasonable/unlawful. Does effective include a reference to the barrister’s own pocket/state of mind/health? What is redress? Is it monetary compensation? If so does it include the prospect of irreversible financial damage before the redress is given (something the big banks are currently resisting with all their might in the interest swap cases and therefore something which, it can be reasonably predicted, the government would also resist)?
- All these questions are unanswered and I would not expect the BSB to answer them, or to be able to answer them. Rather, it seems to me to show the futility of attempting to micro-regulate these matters. I believe that paragraph 21 above deals more effectively with these issues.
A Further Point
- Many at the Bar take the view that this consultation is aimed at VHCC cases. This analysis may be wrong because if a barrister were now to accept a previously declined VHCC case, or a VHCC case which would have been declined had it been offered in the last few months but can now be taken, it seems to me unclear whether the approach to any change to remuneration would be determined by the rules in force at the time the case is accepted, or those in force when the change to terms is proposed. I would welcome an assurance that these proposed changes are not to be made retrospective, and will only apply to cases accepted after the changes come into force.
- Whether current fears are right or not, they illustrate an important point about the reality in which the BSB must operate. That is that barristers doing publicly funded work do not trust the government.
- That being so, and without debating the merits or otherwise of that view, which has no place here, it seems to me that this guidance might ultimately be affected by the law of unintended consequences. The unintended consequence is that barristers will not accept publicly funded work if there is any issue about a unilateral change to fees. Such changes are, of course, customarily announced after public spending rounds. That would have the unhappy consequence that citizens charged with criminal offences at certain times of year would find it difficult to obtain representation.
- Moreover, should the current mistrust progress, it may be that barristers would rather delay the acceptance of new instructions than take a risk. That would produce the unintended effect that a refusal to take work would be triggered not by an announcement of a change in fees, but by the fear that such an announcement might be made in the foreseeable future. Both of those scenarios would lead to clients being unrepresented when they may otherwise have had representation without bother.
- If the changes are going to apply to all cases held at the date upon which the changes come into force, I predict that the changes will act as another reason to refuse, especially, VHCC cases. That is because those cases are customarily very lengthy in terms of trial and lead up to trial, and are therefore more vulnerable to fee changes. Any barrister defending a VHCC case originating in 2009 (and there will be many) will have already seen 2 or 3 such changes. Moreover, such cases represent a large investment of time for a barrister and they may well decide to focus on smaller cases, which may not pay as well now, but may pay better by the end of the process. Finally, the deal announced last Wednesday strongly suggests another change to VHCC rates, thereby increasing the risk.
- As most barristers feel that the current rates offered for VHCC work are unattractive, it seems to me a moot point as to whether the BSB wishes to introduce a further reason to refuse that work, which cannot be done by anyone save the highly skilled barristers who currently do it, as the recent refusal to do VHCCs has made clear. That is, of course, also a matter concerning the administration of justice and access to justice.
- I recognise that the BSB’s concerns are to ensure that the Handbook represents a professional way to behave in the light of changing circumstances. I entirely acquit the BSB of accusations of seeking to do the government’s work. I have read Baroness Deech’s speech in the House of Lords about the proposed cuts and I recognise the real passion and belief that informed what she said. It seems to me that, even were that only a personal view, it would be incompatible with her continuing chairmanship if the BSB were really a government agency
- However, in my view these proposals do not deal with all the issues surrounding unilateral changes to fees by a monopoly supplier, which acts in bad faith and is unaccountable in a private law action. Because of that, the balancing exercise proposed is so skewed as to lead to the wrong result in practice. Further, in principle I do not believe that such enormous changes to the obligations of individual citizens should be effected through the medium of their professional rules.
- It is a cliché that if something is not broken it should not be fixed. But it is true for all that. Recent events have shown that the Bar is both able and desirous of dealing with exceptional problems in exceptional circumstances by means of protocols, which are rigorously observed. The absence, as I understand it, of any professional complaint by a member of the Judiciary, supports that thesis. The BSB should only act if it can do so in the certain knowledge that action will improve matters and is necessary. In my view, neither criterion is satisfied here and the BSB should leave the current guidance as it is.