Bar Conference 2008: Too many solicitors are no good in court, say barristers | Conservatives warn against 'politically correct' prosecutions | Lord Bingham: 'no reason' to exclude Sharia | Law could become the preserve of privileged few once more | How healthy is the Bar? Times Law Panel give their views

Barristers meet this Saturday for their annual conference facing an uncertain future. Or do they? With the courts’ cash crisis and squeeze on public funds, criminal and family barristers have never felt as vulnerable. Meanwhile, their “fatter” commercial colleagues thrive. So is the Bar becoming a two-branch profession?

Tim Dutton, QC, the Bar chairman, took One Bar as his theme of office. He saw the danger that, like solicitors, the Bar is increasingly split. But, he argues, its purposes and principles are the same: “Each of us are cogs in the wheels of justice serving the greater whole . . . a system of justice recognised as one of the best in the world.”

Barristers would all sign up to that. What is the reality on the ground? The Bar is 15,000-strong, including 3,500 in the salaried sector. Michael Todd, QC, chairman of this year’s conference, says that the Chancery and Commercial Bars “are far from demoralised: in fact they are buoyant, and rightly so”. In hard times, litigation thrives: last year more than 45,000 claims were lodged in the Chancery Division.

English law remains the predominant law of choice in commercial contracts, he says, and markets — such as the Middle East — are opening up. True, law firms are taking more junior work in-house but the Bar has no need to fear fair competition — although any such decision driven by a need to cut costs could be “inimical to the interests of the client and of justice”.

Likewise, Ali Malek, QC, reports that the Commercial Bar is “busy, strong and very active” with its “excellent reputation for written and oral advocacy” and the recognition of London as a leading arbitration centre. “Commercial barristers are in demand for litigation in London and jurisdictions where we can be called to conduct cases (for example, the Bahamas, Bermuda, Cayman and Hong Kong].”

Yet if work in the courts is booming, the system itself is struggling, and cuts, Todd predicts, are “likely to lead to a decrease in the quality of service provided”. Nor is it just the commercial courts: government policy to make civil courts self-financing, coupled with a budget squeeze generally, is biting, most dramatically in a fall in care cases brought by councils.

Meanwhile, both criminal and family barristers face real fees cuts. Lucy Theis, QC, a family barrister, says: “When senior family judges are publicly raising concern that the system is creaking and the Government and Legal Services Commission seem intent on putting it under increasing pressure, children, parents and the administration of the courts will suffer.”

The measures, she adds, will affect adversely the family justice system, which is not in the public interest; deter new entrants; discourage the experienced; put at risk high-quality representation; increase discrimination within the Bar; and increase the numbers of unrepresented litigants in court. These factors, she concludes, “will result in effective access to family justice being denied for the most vulnerable in our society”.

Criminal barristers deliver similar warnings. With the biggest trials at risk (although compromise proposals are on the table) and a drive by the Crown Prosecution Service and solicitors to do more advocacy, the market for work is shrinking. Peter Lodder, QC, chairman of the Criminal Bar Association, says that there is a huge rise in higher court advocates (solicitors): “Some are good, but there are many who are truly appalling — defence solicitors who have never before conducted a Crown Court trial and have very limited magistrates’ courts experience.” Some CPS advocates left the Bar because they “never rose above a modest practice”, he says — now “they have become the leading advocates in murder prosecutions”.

He adds: “Watching the destruction of the system by the use of apparently cheap and inadequate labour is deeply upsetting and demoralising.” Faisal Osman, a young criminal barrister, agrees: there comes a point, he says, when barristers ask if they can give enough care to the work and make a decent living. “For many of the young Bar, that point has been reached.”

So what of the future? It depends on the type of work. Lodder accepts that the Bar will be slimmer and, like Theis, that diversity will be affected — through a drain of talent to commercial and private work. “There is”, he adds, “a significant risk of a two-tier system — with all of the social evils that represents.”

It is not just about fees. If the justice system, and the make up of the legal profession (and judiciary) are not to suffer, Dutton and the commercial sector of the Bar must highlight the plight of those at the sharp end. Some change is inevitable. An empty public purse and a shake-up in legal services will mean competition, less work at the private Bar and a leaner — if stronger — profession.

What do our Times Law Panel think? See timesonline.co.uk tomorrow

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