Bar finds a seat in the last chance saloon

There is a story going round the criminal Bar about a Crown Court judge who recently took exception to the increasing tendency of the Crown Prosecution Service (CPS) to deploy its own barristers for court advocacy. Apparently, this off-message judge struck a blow for the Bar by refusing to give in-house CPS prosecutors more time to prepare cases on the grounds that a barrister wouldn’t need it. It wasn’t long, so the story goes, before said judge got a call from someone higher up ordering him to back off.

True or not, the story sums up the mood of pessimism at the criminal Bar, which is struggling to adapt to a combination of the Government’s clampdown on publicly-funded work and increasing competition from solicitor advocates. Time was when barristers could rely on the judiciary to fight their corner. These days the judges have got enough on their plate simply trying to preserve their own independence in the face of a tidal wave of constitutional reform.

Left to fend for itself, the Bar would have historically leaned on its impeccable political connections, thanks to the presence in cabinet of one ex-barrister in the form of the Lord Chancellor and one practising one in the Attorney General, whose job description still extends to chairing the Bar’s Annual General Meeting.

During Tony Blair’s tenure as Prime Minister, this privileged access to the heart of power faded. Under Brown, it can safely be said to have evaporated completely. A barrister Jack Straw may have been many moons ago, but it is not for his legal background that he has been chosen to head the new Ministry of Justice. The same goes for the new Attorney General, Baroness Scotland. Unlike her predecessor, Lord Goldsmith, Scotland had been a Government minister for a considerable period before her appointment and has secured her position on the basis of her political, rather than legal, experience.

Of course, the writing has been on the wall for some time now for the Bar – ever since, in fact, the last Tory Lord Chancellor, Lord Mackay of Clashfern, ‘went native’ and had the gall to suggest that the Bar’s advocacy monopoly was not in the public interest.

Despite the Bar’s best efforts, the courts have now been opened up to solicitor advocates. But that is only the start of it. The silk system is no longer run by the Government, while judicial appointments have been handed to an independent body with the express aim of eliciting more applications from solicitors. And, of course, there are the impending legal services reforms, which are set to make the English legal market the most liberal in the world.

The Bar has reacted to these changes in the only way it can. Gone at last is the trenchant and often hysterical reaction to any proposed reform. In its place is a more measured and, dare I say it, realistic approach – one that reflects the Bar Council’s new status as an organisation that cannot assume that the Government will listen just because it raises its voice.

john.malpas@legalweek.com