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Nicholas Lavender QC takes over as the new chairman of the Bar amidst unprecedented protests over legal aid cuts which recently saw the first walk-out from trials in the profession’s history. A top-rated commercial silk himself, he talks about his career and the turbulent year ahead:
Why did you choose law as a career and what encouraged you to become involved in Bar politics?
I grew up in Yorkshire where my family had worked in the coal mines—my father as a deputy electrical engineer with the Coal Board—for generations. I had no legal connections but I remember watching Rumpole of the Bailey as a teenager and thought it looked like an interesting career.
[Lavender went from his direct grant school in Wakefield to Corpus Christi College, Cambridge, where he took a first in Classics, and then to Oriel College, Oxford for a BCL]
I didn’t feel overawed by the Bar. It is important to get away from stereotypes about lawyers—historically, practising as a lawyer has always been one of the routes for social mobility.
I did my pupillage at No 1 Hare Court, now Serle Court, where I went into commercial law, though I still secretly wish I had stuck with Rumpole. My wife’s cases [criminal barrister Anuja Dhir QC] always seemed much more interesting than mine.
My head of chambers encouraged me to become involved in Bar politics straight out of pupillage—dealing with debates on the rights of audience for solicitors and employed lawyers—and I have been involved in it ever since.
Do you think the profession risks becoming less diverse with the cost of training and shortage of pupillages?
I am very concerned about social mobility and worry about the debt young people have to take on. I am getting together a team to look at proposals to encourage chambers to recruit their pupils earlier in their academic career before they sign up for the bar training course so, even if they aren’t being funded for the course, they have been identified as pupillage material which could be a great help to them. However, the obverse side is that those who don’t find a pupillage face tough choices but if they decide to go on the training course regardless, they must go into it with their eyes open.
What are the key issues ahead of you as Bar chair?
First up are three Ministry of Justice initiatives:
Another big issue is the Quality Assurance Scheme for Advocates (QASA) but we are waiting on the judicial review decision so I can’t comment on it until I know what the court has decided. [Nb: On Monday (20 January 2014) the judicial review failed.]
Was the nationwide protest over legal aid cuts undermined by the government’s release of figures suggesting the average earnings of a full-time barrister are £84,000 and the Daily Mail photographs of a protestor carrying a Mulberry handbag?
The protest was a very clear demonstration of the strength of feeling about the cuts. This isn’t just a matter of self-interest, it is concern that the system is reaching a point where it isn’t going to work. You can’t simply pay the lowest sum you can get away with. You need people with the skill and the experience to do the job and yet the fees for the most demanding and difficult cases are going to be cut by 30%.
The government’s own figures show that for just under 5,000 barristers doing publicly funded criminal and civil legal aid, the mean earning last year was £56,000. But that includes VAT and overheads—it isn’t a salary. Yet the figures the government published encouraged the reader to confuse takings with profits. There was no consultation with us over the format of the publication of the figures which is a matter of considerable regret and it is something we will be taking up with the Ministry of Justice.
It remains to be seen what will happen next but we will keep up the pressure. The government has an obligation under the European Convention on Human Rights to provide legal representation and if it fails to meet that obligation, the courts are possibly going to be asked to dismiss prosecutions.
With the Lord Chancellor Chris Grayling due to announce his final plans for saving £220m from the legal aid scheme, would you recommend an aspiring barrister considers publicly funded work?
I would say what I say to anyone contemplating a legal career—make sure you know what you are getting into. It is a very rewarding career—though not necessarily financially—but when you are in a trial, it involves a huge amount of work and stress so only do it if you are truly committed.
You have been critical of the current regulatory framework and the Legal Service Board's (LSB) interventions and reports on issues such as the cab-rank rule. Should it be scrapped?
The cab-rank report was written by someone who didn’t understand the rule and we didn’t accept it at all. But generally we have a very good relationship with the LSB. When it comes to legal regulation, there have been three statutes in the last 24 years but the Lord Chancellor clearly feels Parliament still hasn’t got it right. The point we are agreed on with the LSB is that the board should be abolished. Where we disagree is on what should replace it. They want a new super regulator and we want to keep the current system where each branch of the profession has its own regulator. Having one body which tries to do too much can end up with it not doing any job particularly well. We will continue lobbying on this but I do think there is every reason to hope that the government will see the present system involves too heavy regulation by the LSB.
This year could see significant changes in the way barristers operate once the Bar Standards Board is given the go-ahead to license alternative business structures (ABSs). Will ABSs and increased use of direct access schemes blur the lines between branches of the profession?
In the present climate I don’t see any obvious role for ABSs at the Bar because, ultimately, advocacy is an individual skill. It doesn’t matter what your business structure is, when you get into court it’s just you. There is always a risk with larger organisations such as ABSs that other considerations will come into play when the individual advocate has to decide what is the right thing to do.
There is also a positive disadvantage to chambers in terms of conflicts of interest. If a set turned itself into a partnership or ABS, their barristers couldn’t appear against one another. It could also seriously reduce access to the right advocate in a specialist area of law or an area of the country with few chambers.
Direct access works in some situations but the traditional division of functions between solicitors and barristers continues because it works. Everyone says fusion is around the corner but it never comes because the reality is the majority of solicitors and barristers do different jobs and will go on doing that.
How do you think the Bar will look in 12 months?
I haven’t set targets because I don’t think it is constructive to come in saying you want to achieve X,Y and Z and then the next chair comes in wanting to achieve A,B and C. We changed our rules recently to emphasise continuity by electing the vice-chair earlier so they do seven months as the vice chair-elect and then a year as vice chair before becoming chair. I am carrying forward the good work done by my predecessor and I hope to hand the baton on with the Bar still in good shape. I don’t fear it will be weakened. The Bar has been around for 500 years and we have survived because we do an important job and we do it well.
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