In the Media

McGowan takes up the two-bar challenge

PUBLISHED February 4, 2013

Monday 04 February 2013 by Catherine Baksi

Maura McGowan QC has become the second woman to lead the 15,000-strong bar profession, after Heather, now Lady Justice, Hallett. She takes over at a time when many at the bar, the publicly funded bar in particular, face huge challenges.

Though the bar prides itself on being 'one bar', a sense McGowan is keen to retain, the mood is very definitely a tale of two. The commercially funded bar is thriving. 'They are increasingly receiving higher regard in international work and are popular with the Ministry of Justice because they're bringing in a large amount of income,' she says.

But for the publicly funded bar, especially in crime and family, things are not so good. In crime, she explains, the volume of work has dropped by 10%, fees have been cut and many more solicitor advocates are doing the work that the bar traditionally almost had a monopoly on.

A criminal barrister herself, McGowan laments: 'Morale at the criminal bar is very low. They work harder than they ever have for less income, yet feel they are in everybody's sights.'

Often representing unpopular people, criminal barristers enjoy little public sympathy, she says, and are easy targets for the government to scapegoat and pillory. 'It doesn't help when the MoJ leaks to the press the figures for high-earning barristers without putting them into context or pointing out that it is not the picture for the majority.'

She accepts that there are 'undoubtedly efficiencies' to be made in the system and would welcome the opportunity to discuss details with the ministry, but taking cheap shots at a minority of barristers is not the way to effect change.

One money-saving suggestion mooted by justice secretary Chris Grayling recently is to use silks in fewer criminal cases, an ominous portent that will perhaps lead to the QC's rate being scrapped, making it only a badge of seniority.

Perhaps unsurprisingly, McGowan says his line of thinking was flawed. 'What you get in a silk, which is where the MoJ may have slightly missed the point, is that you're not just getting someone who is senior, but someone who has been identified as being in the top percent of the profession.'

She warns that losing the future of promotion to silk will discourage people from doing criminal work, which will cause a disproportionate number of women and ethnic minority barristers to be lost from the profession and in due course limit further the pool of candidates going onto the bench.

Hard pressed as they are, criminal barristers appear in militant mood. Last year a survey of members by the Criminal Bar Association revealed that 89% of respondents would be prepared to take direct action, the closest they can get to going on strike.

McGowan cannot predict whether her peers will strike, but says: 'It's a sign of how unhappy and desperate people are that they are talking about not working.'

She is concerned about the 'damaging effect' of proposed changes to the contracting and payment for criminal defence services. The introduction of block contracting and one-case, one-fee, she says could present 'fundamental dangers' for the criminal bar.

She adds hopefully: 'They are only topics for consideration at the moment. I don't think the MoJ is wedded to any one of those ideas.'

McGowan is relaxed about the issue of solicitor advocates. 'The bar didn't expect to have the work as of right. It thrives on competition and hard work and can compete with good advocates from whatever background.' There is concern though, she says, over the lack of experience of some as advocates compete for a shrinking amount of work.

Looking to the future, she says: 'Good advocates will survive and I think that there will be a place for the bar and the solicitor's profession to work side by side.'

She is confident that there will remain a market for the independent referral bar, if only from small firms who do not want to or cannot afford to have an in-house advocate.

The impact that April's legal aid cuts will have on parties left to navigate their own way through the court system, says McGowan 'is impossible to calculate'. The problem, she predicts, will be seen acutely in family proceedings. 'Vulnerable and disadvantaged people who don't know the procedure and can't be expected to, will have to try to put forward a rational argument in an incredibly highly charged and emotional atmosphere.'

Judges, she says, will have no option but to 'roll their sleeves up and get involved', asking each party in turn to explain their side of things. 'All of that will at the very least double the time in court, clogging up the system, and end up being far more expensive than the cost of a solicitor or barrister.'

Almost a year since the first alternative business structures were licensed, only one involves a set of chambers. This, says McGowan, does not mean the bar lacks innovation or, as the Legal Services Board would have it, 'is committed to walking backwards slowly'.

ABSs are still relatively new and solicitors have always been much more commercially adaptable than the bar, she explains. 'The bar is still, for most practitioners, referral and independent in the sense of being self-employed, and so for us to form partnerships is a very new concept. That's not to say that we won't or that it won't suit some people very well, but we want to make sure we're doing the right thing before we move.'

McGowan adds: 'One of my fears is that if you lose the independent referral bar, you can't recreate it and, as a model, it has worked extremely well for about 800 years.'

Public or direct access, are innovations that barristers have been more keen to engage in. By doing so, McGowan, insists, barristers are not setting themselves up as 'alternative solicitors'.

She expects public access to have a limited scope, suggesting it will be appropriate for overseas clients, particularly overseas law firms that just want advice. It will also make the bar more accessible and cost effective and help the publicly funded bar by making it easier to deal with fees, she said.

Responding to the suggestion that barristers lack the ability to support clients throughout the whole litigation process, she draws an analogy with solicitors conducting advocacy. 'Ten years ago we might have said that solicitors can't do advocacy - they don't have the skill or experience to take a case from the first visit to the office all the way through to the end of a trial. Well they obviously do.'

Similarly, she suggests, there are some cases where a barrister has the ability to see a case through from beginning to end.

'I recognise there are areas that I might not be able to do, and where that's the case, I'm more than happy to refer it back, just as solicitors are more than happy to say when something is beyond my experience or expertise.

'We're not going to flood the market.' But she adds 'there will be much more fluidity of the strict relationship between barristers and solicitors'.

The recent Bar Barometer survey, which presents a snapshot of the profession, suggested that the pool from which pupils are being drawn is narrowing, despite efforts to encourage students from a wider range of backgrounds into the profession.

One of the big problems, suggests McGowan, is the cost of tertiary education. Graduates who have racked up £20-30,000 of debt will not be keen to add to that by taking the bar exams.

Making students apply for pupillage before they commit to taking the bar professional training course, suggests the chair, may be one way to improve things as students may be less daunted if they have the prospect of pupillage at the start.

Apprenticeships, being encouraged by the government as a means to improve access to the professions, would not work for the bar, she asserted. Self-employed barristers, she reasons, would find it har
d to commit to paying someone for five years, especially in areas where work is dwindling.

And while chambers give pupils one-to-one training in the practical and vocational side of being a barrister, McGowan says, they do not give academic training. 'You can't substitute doing a five-year apprenticeship, even with extremely bright students, for a degree and a postgraduate education,' she adds.

For aspiring barristers looking to enter the profession now, McGowan would encourage them to think about the commercial bar. 'There's a great future there,' she suggests, especially for women and those caring for children, as practice is largely desk-bound and gives the opportunity to work remotely.

'If they want to do crime, that's fine - if you're good enough and are prepared to work incredibly hard to not make a particularly good living then go for it, but you've got to realise the future is not going to suddenly get better and you're not going to start earning a fortune,' she cautions.

During her year in office, McGowan wants to see a bar that is in better shape and retains its cohesion.

'I want the criminal and family bar to feel less beleaguered and to regain a degree of pride in what they do.I'd like to see their position and structure protected so that the public has the best of both sides of the profession,' she continues.

McGowan does not want to see any diminution in diversity and hopes to encourage more women and ethnic minority barristers going to the bench. And she adds hopefully, though not expectantly: 'I'd like Chris Grayling to provide more money for legal aid.'