What's wrong with the Bar?

Martin Bowley QC draws up a Swot analysis to give food for thought to the incoming council

A few weeks ago a document was leaked to the Independent that had been prepared by a "Ginger Group" of the Law Society secretariat. It was a Strengths, Weaknesses, Opportunities and Threats (Swot) analysis of the Law Society and the solicitors' profession. Among weaknesses it identified was "a failure to make progress towards ... eventually subsuming the Bar and its work". Among the opportunities it suggested was the possibility "to utilise the superior facilities of the Society to work with or take over the Bar".

These analyses are now standard management tools. If those are really the sorts of views that are circulating in Chancery Lane, it is high time someone carried out the same exercise for the Bar and the Bar Council.

In trying my hand at it, I do so from the perspective of nearly 10 years on the Bar Council and nearly 10 months off it. I should emphasise two things. First, the views contained in the analysis are entirely my own. Second, no inferences as to priority should necessarily be drawn from the order in which I have placed any points. I just hope that they will provide some food for thought for the new officers and the new council that takes office in January.

STRENGTHS

A corps of highly qualified advocates and advisers prepared to give a fully independent service at every level of the law business.

An authorised body granting fast-track rights of audience by virtue of the Courts and Legal Services Act 1990.

Close contacts with government, especially through the Attorney-General and Solicitor-General as leaders of the Bar.

Close contacts with the full-time judiciary at every level, especially through the Benches of the Inns of Court.

The capital assets of the Inns of Court.

Frequent consultation by the Government on all questions of law reform and legal administration.

The willingness of the more senior members of the profession to give freely of their time to run the profession and its institutions.

A level of professional expenses that ensures a clear economic advantage over solicitors.

An administrative (chambers) structure that provides all the benefits of partnership without any of the disadvantages.

Direct access to more than 300,000 other professionals.

A small but highly motivated and very efficient secretariat.

WEAKNESSES

A lack of continuity in forward-thinking and planning.

A tendency to be reactive rather than proactive to outside events and institutions.

A failure to appreciate that interdependence is as important as independence if the Bar is to survive.

A reluctance to embrace modern management and administration techniques.

A reluctance to accept the importance of continuing education at every level of the profession.

The size of the profession - currently only 8,500 in private practice.

A governing structure in which the legal responsibilities of the Bar Council are separated from the financial resources of the Inns of Court.

A governing body (the Bar Council) that is too large and not always fully representative of the profession.

Too many institutions (Bar Council, four Inns of Court, six Circuits, and more than 20 professional associations) with differing agendas and different priorities.

The differing interests (and incomes) of the commercial, common law, family and criminal Bars.

The public image of the profession dominated by the "fat cat London silks".

Poor communications between the governing institutions and their members.

The dependence of too many barristers on publicly funded fees.

Still recruiting from too narrow a social base.

Insufficient funds for students and pupils so that the base will become progressively narrower.

The inadequacy of the current systems of pupillage and pupillage selection.

OPPORTUNITIES

To expand the Bar's market at home and abroad.

To raise the quality of the Bar's services by increasing specialisation and universal continuing education.

To explain to the Government, Parliament, the Opposition, consumers, the wider public and the Bar itself the public interest benefit of a fully independent Bar, and the fact that partnerships and direct lay access run directly counter to that public interest.

To take a lead in matters of law reform, especially those aimed to make the legal system more accessible, less complicated and less costly.

To take a lead in formulating policy to control legal aid expenditure.

To modernise the governance and financing of the profession by having a single governing body.

To introduce modern management and administration techniques into the running of chambers.

To improve communications between the governing institutions and their members.

To widen the recruitment basis of the profession.

To increase the funds available for students and pupils.

To modernise the current systems for pupillage and pupillage selection.

THREATS

From a government that is the enemy of all professions and of Legal Aid.

From an opposition that is simplistic in its approach to reform of the civil justice system.

From the Law Society with its (now) less than hidden agenda "to subsume the Bar and its work".

From the Lord Chancellor's Advisory Committee on Legal Education and Conduct, which, apparently, believes it should be interventionist rather than advisory.

From multidisciplinary partnerships where even the largest City solicitors' firms would be dominated by the ethos of the accountants.

From a minority within the profession that cannot see that equal right of audience, common legal education, partnerships and direct lay access will make the barrister indistinguishable from the solicitor and lead, inevitably, to fusion.

From a majority within the profession that wants an independent Bar to remain, but that is reluctant to face up to the uncomfortable reforms which will be necessary to secure that.