Exclusively commercial standards cannot be applied to the administration of justice, writes Hugh Mohan.
Any outside look at a profession's practices and whether they are pro-consumer is very useful. On entering a consultation process, the starting point must be what is in agreement and what separates us.
The Competition Authority and Bar Council both believe in an independent referral Bar. The report and the chairman of the Competition Authority endorse this concept and accept it is both necessary and good for a democratic society. Likewise, we agree that the Bar must be competitive and pro-consumer.
Some of the Competition Authority's proposals will facilitate competition and will not disadvantage the consumer. The Bar will implement those proposals. Other proposals would undermine the independence of the referral Bar to the detriment of the consumer. While the Bar will carefully consider the proposals, it will, where appropriate, suggest alternative and more proportionate means by which those objectives can be achieved.
The Bar's independence is important, as in a democracy the law serves as a bulwark between the State and the citizen and protects the Constitution and people's rights. A person, anywhere in the land, can take on the might of the State or big business, on an equal footing. The recent case in the Supreme Court was an example of the justice system preventing the State from riding roughshod over citizens' rights, in this case, the elderly in care.
Exclusively commercial or competition standards cannot be applied to the administration of justice. These standards are ill-equipped to reflect the value of equality of arms before the court and the need to protect those who cannot afford representation.
The Bar Council supports the idea of direct access in non-contentious matters and already operates a system of direct access for many professions and State bodies.
This has been widened to include NGOs and community groups, on a pro-bono (no-charge) basis. The Bar Council will consider further improvements that might be made to this system.
However, asking barristers to provide full direct access would change the very nature of the independent Bar and leave them in a position where they have to change the nature of their practice, increase costs and be beholden to particular clients for work. There is a division of labour between the two professions, especially in litigation. The barrister would not have the time or expertise to do the solicitor's work and would employ someone else to carry out these tasks.
This would increase barristers' costs, making it more difficult for barristers to do pro-bono work. It would also involve barristers having responsibility for client accounts, for which they have no training or expertise, and give rise to complicated and costly regulatory issues. The report does not establish any demand among consumers of barristers' services for such an unrestricted direct access system.
Limited direct access has been available since 1990. The largest purchasers of legal services have direct access, eg the State and DPP. Even where parties have direct access, such as banks or insurance companies, they still retain outside solicitors, as it is felt that the in-house knowledge is inadequate to ascertaining outcomes, and there is a lack of courtroom experience.
The Competition Authority has produced no evidence of a demand for barristers to form partnerships or work in solicitors' firms. The Bar Council considers that the sole practitioner rule enhances rather than diminishes competition.
The sole practitioner rule guarantees the availability of a large number of counsel and offers competition between counsel on price and quality. Part of the authority's justification makes reference to the system of chambers in England. Chambers, however, do not involve partnerships between barristers, who remain sole practitioners.
Furthermore, the report ignores the fact that the chamber system seriously restricts open access to the profession because the success or otherwise of a barrister's career can be fundamentally dependent on gaining access to the better chambers, which is regulated and controlled by those chambers.
The Bar Council believes the current system where barristers act as sole traders is good for competition and good for the consumer. People who find themselves in trouble can go to their local solicitor and have access to the best legal advice in the country.
If barristers in the various specialist fields were only employed by a small number of top solicitors' firms, you would not have parity before the courts. This would inevitably lead to a restriction in the choice of specialist barristers available to the smaller firms and consequently to the consumer.
This change would put "the small man" at a disadvantage and create a cartel of a few large legal firms to which ordinary members of the public would have little or no access. In the absence of a properly-funded civil legal aid, many important issues of constitutional justice can only be litigated by an independent Bar, which can take on cases on a pro-bono or no-foal, no-fee basis.
Solicitors have had full access to the courts since 1971 and still the market looks for barristers to represent them in court and this has proved to be more cost-effective.
The independent referral Bar is vital to the proper functioning of the legal system and to the protection of rights in society. The Bar Council accepts that competition policy for legal services needs to balance public interest in procuring cost-effective legal services, against the social interest of retaining public trust in the quality and integrity of such services.
Some of the Competition Authority's proposals do not achieve the correct balance and run the risk of undermining the very pro-consumer and competition objectives which we both share.
• Hugh Mohan SC is chairman of the Bar Council