High hopes

PUBLISHED January 12, 2006

In outlining his stance on legal aid and reform of the profession, new bar council chairman Stephen Hockman pledges to come clean on the major issues. Catherine Baksi reports

Sitting in the windowless office of the vice-chairman of the Bar Council in late 2005, Stephen Hockman QC looks relaxed and cautiously optimistic while he contemplates the coming year as the top dog at the bar ? and not only because his new office will have windows.

?Subject to one qualification, I think the bar is in very good shape,? he says. That one qualification ? the need to ensure the 50-year-old legal aid system is adequately funded ? will be one of the main issues exercising the mind of the of the 58-year-old head of 6 Pump Court chambers in his 12 months as chairman of the council.

Mr Hockman lists his three key objectives: ?To consolidate the outcome of the Clementi process by ensuring the Legal Services Bill correctly represents that outcome; to bring to a satisfactory conclusion the Carter review of publicly funded fees; and to maintain and where possible enhance the profile of the bar in providing a consumer-friendly public service, driven by quality and the highest standards.?

On the first objective, the new chairman says: ?Society depends critically on having an effective legal system, which depends on having a successful, well-instructed and regulated legal profession.? He seems confident that Sir David Clementi?s recommendations will secure the bar?s future in a diverse legal market with its own separate regulatory regime. Under the government?s proposals, the Bar Council and Law Society, having separated their representative and regulatory functions, will be the frontline regulators of their members, under the overarching supervision of a legal services board (LSB).

For this to work, says Mr Hockman, two things are essential. Firstly, the LSB must be independent of government: ?We can?t allow the process to lead to a state-regulated legal profession. That would be abhorrent, not just here but internationally. It would set a precedent that would destroy at a stroke the reputation of British justice.?

Secondly, the LSB must be an oversight regulator ? an umpire, not a frontline regulator, he says. ?The key is Clementi?s notion of reciprocity ? a body that wants to retain its regulatory role has to separate its regulatory and representative functions, and introduce a substantial lay element into the regulatory process.

?We have achieved this and there would be no point in having gone to the lengths of restructuring ourselves if we weren?t then to be entrusted with self-regulation.?

On the sticky issue of alternative business structures (ABS), which could see lawyers ? including barristers ? working in partnership with other professionals, Mr Hockman is pragmatic. ?Since the bar sets out to be principally a referral profession, the existence of other strong and thriving professional groupings is very much in our best interests ? these are prospective clients.?

The issue that concerns him is again the matter of regulation: ?What will be the standards and culture that apply in an ABS if, as the White Paper envisages, a majority of its controllers and managers are not lawyers, and even if certified as fit and proper to be members of an ABS, are by definition not subject to a complaints procedure for breach, and are not within the regulatory remit of the LSB or the office of legal complaints? What will be the effect on the ability of the public to gain redress? These are the questions which, as consumers, we the bar are asking and which Parliament will need to address.?

Mr Hockman foresees barristers wanting to play a full part in the process and does not rule out the idea that the Bar Council could have a regulatory role in relation to ABS firms, ?but on what basis and terms, it will be for my successors to argue about. I don?t want to lay down too many constraints and I don?t want to promise too much?.

Turning to his second objective ? the procurement of publicly funded legal services ? Mr Hockman, whose career spans criminal, civil, family and public law, says: ?In our country we have a long tradition of ensuring that people who can?t afford to pay for legal help get public funding. We have to ensure the legal aid scheme continues to be well resourced, otherwise that crucial civilising element in our system will gradually wither and die.?

The bar, he says, is not against innovation or flexibility, and it recognises the need for control of expenditure. ?What must not be done is to achieve control purely and simply by bearing down on the incomes of the professionals engaged in work, and getting more and more hours of work for the same money, thereby squeezing all the competent people out of the system.?

Referring to action taken by some members of the criminal bar in protest over reduced fees and increased workload, the chairman says: ?What the many criminal barristers wanted to achieve was to demonstrate they were and are entitled to refuse to do those cases if they are not paid a proper fee; they didn?t want to do it [the action] and took no pleasure in doing it.?

With a hint of the colourful jury advocate, he suggests that expecting criminal barristers to provide their service regardless of the fee is ?a form of exploitation that even the most rabid anti-capitalist in some unreconstructed pre-war age would have hesitated at?.

The Bar Council has, he goes on, reviewed some of the very high-cost cases that contributed to large amounts of criminal legal aid spending, concluding that with more efficient judicial case management, costs can be substantially reduced in favour of shorter cases and junior practitioners.

?This would achieve the twin objectives of controlling expenditure and rectifying the fee injustices of the last eight years. The first question we want Lord Carter to examine is whether funds devoted to civil legal aid are efficiently used, or whether the increased need can?t be met by more efficient use of resources.? The case, he adds, has not been made for cutting back on criminal legal aid to pump prime civil legal aid.

His third objective ? increasing the profile of the bar ? ?has to be achieved incrementally and persuasively by a positive upbeat approach?. He says: ?I don?t intend to present myself as Mr Angry all the time ? anger is not very persuasive and there are lots of others who feel angry about things with greater cause.

?I want to present the case for the bar as it is ? diverse in terms of gender and ethnicity, highly efficient, using modern technology, proactive case management, alternative dispute resolution, operating internationally as well as domestically, with a strong ethical tradition.?

He says the message he wants to get across is that ?the barrister is not an unscrupulous mouthpiece, but a professional, crucial to a civilised system of justice?.

Mr Hockman will also need to consider the future of the bar?s licensed access scheme. It was dealt a blow last year when a costs judge ruled the costs of the tax consultants appointed by tennis star Andre Agassi to instruct a barrister directly without using a solicitor were not recoverable even after he won his case (see [2005] Gazette, 8 December, 5).

?The case showed the cost of the scheme was significantly less than if another professional had been used,? says Mr Hockman. ?It does not threaten the scheme, but highlights the need for a review of the Civil Procedure Rules.?

But when it comes to working with the solicitors? profession, he is pleased with the new QC appointment system ? ?it?s a good example of how the two branches of the profession can co-o
perate in setting up a new method of regulation? ? and is looking forward to the conclusion of discussions on a standard form contract to govern the relationship between solicitors and barristers.

He sums up the role of chairman as that, appropriately enough, of an advocate. ?I think there?s a parallel between a practitioner?s role and the role the leaders of the profession perform. Just as when we appear for clients we have to speak the truth as our clients see it, so on behalf of the profession we have to speak the truth as we see it, both for and to the profession.?

He concludes: ?If I can succeed in being a successful advocate for the profession, then go back to being a successful advocate for my clients, that will be quite enough for me.?