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Hundreds of years of court tradition that advocates were independent of the state ended when the Crown Prosecution Service (CPS) began employing its own barristers.
It means less work and less money for the self-employed briefs used to a monopoly – but many believe there’s a decline in standards and a risk to justice.
What do you think?
This week, we'd like to hear your thoughts on this question:
Should a greater part of the annual run of prosecutions be conducted by lawyers who are in the salary of the state?
Share your thoughts through the discussion thread below.
First broadcast: Friday 21 Nov 2008 on BBC TWO England & Northern Ireland
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OU on the BBC: The Barristers - About the series
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The Barristers: In the pay of the State?
In the third programme in the series The Barristers, the creation of state-paid barristers is explored. But is it a good thing for justice to have lawyers having their wages paid from central taxation? We want to know your thoughts:
Should a greater part of the annual run of prosecutions be conducted by lawyers who are in the salary of the state?
Re: The Barristers: In the pay of the State?
A seperation of powers between Executive Judiciary and Legislature was highly desirable and a plank of freedom. Professional self employed Barristers being firewalled from government influence by an "honourarium" relationship with solicitors makes for good independant Justice.
Barristers being increasingly employed directly by the CPS breaks the business model of many Criminal Chambers. Their low end work will increasingly be absorbed by CPS Employed Barristers.
The big log-jam and headache in the Bar is now Pupillage. There are four times as many BVC students as Pupillages even given several hundred students who need to be called to the English Bar to qualify in their own country. Pupillage was historically an unpaid internship, but has become a paid training contract. This paradoxically leads to fewer Pupillages being offered. This means that the CPS will be able to hoover up as many talented Barristers as they want because they can offer a steady stream of work to its employees.
I consider that we are treading dangerous ground here.
We have heard many times where the police have manipulated or excluded evidence.
In the programme I felt that one Barrister was witholding opinion so as not to conflict with the detective. Now was this a result of being in the same employers purse ?, or simply a tread warily approach.
The view that those in self employment work extremely hard does not hold with me. A true professional will operate fully as employed or self employed. It is probably a worry that those who do not fit within this minority would take up employment with the state, and this type could undermine the system. We saw Barristers in state employ playing ping pong with cases. Unless there are measures in place to monitor this behaviour I fear for the judicial role in presenting fully the facts of a case.
However is it not true that Barristers in self employment take cases from the state as prosecutors ?, are they not technically in the employ of the state, perhaps so. The only difference I see is that they will probably circulate within a different social sector and therefore be less inclined to be influenced.
I feel that all profession's require their sovereignty, which seems to be erroding fast through misuse of statute, which has been arranged in too broad a language.
Re: The Barristers: In the pay of the State?
The issue of ‘professionalism’ is an extremely important one. In the modern world, ‘professionalism’ has come to be an alternative to independence which, in earlier times, was considered to be a prerequisite for fairness, integrity and decency. It takes a very long time to establish a culture of ‘professionalism’. With regard to medicine, that process did not begin until the 1830s and was completed by the 1920s. The standards of behaviour required of a medical practitioner have steadily declined since 1948; a glance at the papers, and the actions of the GMC, will tell one that the decline is now gathering pace. My great-grandmother was a doctor, as was my grandfather, uncle and father. My grandfather opposed the NHS, despite being a member of the Fabian Society during the 1900s and 1910s, because of his fears about the way in which state funding would erode ‘professionalism’; many doctors in the USA have similar feelings today. I cannot agree with the position which he took, nor could my father, because, in the absence of state funding, we would all fear illness and dread going to the doctor because of the cost. However, there is a terrible paradox at work. State funding has massive utilitarian benefits but these entail a consequential erosion of ‘professionalism’. I cannot see how this can be resolved, unless by the old Aristotelian device of the middle way; a balance must be struck somehow, although that means walking on a tightrope. I fear that, today, the medical ‘profession’ is in danger of falling off! Sadly, despite the magnificent work of many dedicated teachers, there is no such thing as a ‘teaching’ profession. The malign influence of the teaching unions, leading to utterly disgraceful behaviour during the 1980s and 1990s, is the symptom of a career which has been ‘proletarianized’ with baleful results for many of our children. Until 1911, Members of Parliament were unpaid because, in many people’s minds, payment for MPs compromised independence, and therefore fairness, integrity and decency. You just have to look at the current House of Commons, filled with useless careerist MPs, to see the damage which, over the long term, has been done to the independence of the MP with malignant consequences for the integrity of our political system. It has taken nearly a century but the result of payment for MPs is a House of Commons which is, to my mind, beneath contempt in its supine acceptance of the arrogance of power. If this were to happen to the Bar then we would indeed be living in a ‘police state’. It should never be forgotten that it was the Bar, as then constituted, which provided the main opposition to Charles I and ‘Stuart tyranny’. Commenting on the arrest of Damien Green, Michael Howard, a barrister, commented that nothing like this had happened since the days of Charles I! For this reason, though I see, as with the medical profession, the dangers of independence, I believe that in the long run, it is more important to defend independence, even if that means less access to justice for some. Keynes, as was typical of a man without children, opined that ‘in the long run we are all dead’. We may be, but we must think of our children and of their children. If we lose the independence of the Bar then it is they, not us, who will rue the consequences.
Re: The Barristers: In the pay of the State?
Speaking as a member of a working class family which has produced both teachers and lawyers over the generations, I would be quite comfortable with a ‘proletarianised’ legal profession. My work with disadvantaged children, young people and adults in further and higher education and as a primary school governor brings me into contact with many teachers of undoubted professionalism. It is individual values which count, not just the way a profession is organised, or indeed paid for.
Kim
Re: The Barristers: In the pay of the State?
I hope that I am not misunderstood. Of course, many, perhaps most, teachers are professional. The point which I am making is that although individuals will always do their very best in difficult circumstances, one cannot disregard the pressures of politics and money on institutions. The Law is about Justice and, if history tells us anything, it must be that Justice cannot prevail, even though individuals do their damndest, if institutions are undermined. I am talking about institutions, not individuals, and would be mortified if any decent individuals working in those institutions felt that I had anything but the highest regard for them.
Re: The Barristers: In the pay of the State?
What about the indecent ones' feelings?
...oh and does what you wrote mean socialism has to be lawless ...and unwell?
Re: The Barristers: In the pay of the State?
Keynes, as was typical of a man without children, opined that ‘in the long run we are all dead’
Good point well made
Re: The Barristers: In the pay of the State?
I do not think that anyone could dispute that human nature is weak, fallible, liable to corruption, and so on and forth. That is not the issue here. The issue is whether an independent Bar is more likely to result in a greater degree of justice than an advocacy system which is paid for by the State. The point which should have been made is that, since 1949, legal aid has, in some respects, resulted in part of the Bar being in the pay of the State. The interesting question is whether a state Defence service, as discussed in last night’s programme, is really that different from the current legal aid system, only perhaps more efficient. My point is that all systems are flawed but the system which has an independent Bar is more likely to sustain the ‘rule of law’, which benefits everyone, than a system in which the State becomes over-involved. There is a cogent, if controversial case, against legal aid which would run along similar lines. Barristers who derive their income from legal aid are, in effect, servants of the State and therefore liable, however honourable their intentions, to do the business of the State, rather then serve the cause of Justice.
Re: The Barristers: In the pay of the State?
It is worth remembering two things about the ‘traditional’ Barrister.
1. The ‘traditional’ Bar is independent; answerable to no government minister, or other ‘jack in office’, be he or she a civil servant in the Department of Justice or the Home Office or any other such person.
2. Barristers serve the court, and therefore justice, not any government minister or ‘jack in office’. You will recall from the first thread that Barristers are not paid by those on whose behalf they act in court; in fact they used not to be paid at all just given an ‘honorarium’ which was voluntary. Today, they are paid by the solicitors who are briefed by the clients. Clients can sue a solicitor but not a Barrister. Only a judge can discipline a Barrister and judges are, in the English legal system, totally independent of government. This has been the case since the seventeenth century. The last King who interfered with the judges – James II – was forced to abdicate and ended his days in exile at the court of the King of France.
The question ‘who pays the piper’ is a very important one. Whoever is the paymaster, in the end, determines what is done by the person who is paid, and also how it is done. I would say that state salaried Barristers cannot be independent and will end up, however honourable they may try to be, serving the interests of the state and not those of justice. In my humble opinion, a state salaried Barrister is a disgrace to the profession but that is a highly contentious personal view. Visitors to the site may well take a very different view and should express this with vigour.
Re: The Barristers: In the pay of the State?
However, Charles, barristers are relatively unusual in the traditional professions in that they have remained independent for so long. Teachers and doctors, for example, are in most cases paid for by the State and I would argue that they retain their professionalism. There has to be a balance between retaining independence and restricting access to a service only to those who can pay. Who could argue that justice is less important than health or education? Professionals who are paid by their private clients have to draw ethical lines and those paid by the state are in the same position. It is important however to have a professional body which is prepared to crack down on the unethical, wherever they are found.
Kim
Re: The Barristers: In the pay of the State?
How sweet to hear the lesser spotted Pious Barrister in full flow but
Humans aren't particularly good at virtue
Barristers are very human
Solicitors are ambulance chasers
Barrister are specialist ambulance chasers
Independant of all but their brotherly love
Rich people can afford justice
What is honourable about charging a pensioner £150 per letter... not per epistle... but per letter in an epistle?
Hold on tight to that horse, it's a long way down, "Tally Ho!"
Thank Margaret they got rid of legal aid, and trains and hospitals and education and miners and social fabric... blah
these views have mostly been expressed with vim
Re: The Barristers: In the pay of the State?
Oh dear, I'm afraid when people accuse solicitors of being nothing more than ambulance chasers, I start to glaze over as, wirth respect, such claims indicate little understanding/knowledge of what really goes on.
I am a Legal Exec and I used to do very litle put PI work (I've never chased an ambulance thoug) but now around 95% of my work is family work- (divorce, injunctions against violent parters contact etc and also public law cases - where the local authority are applying to take chld into care or adoption). It is hard sometimes to remain detatched, the work is intensive and mostly rewarding but at times crushingly disappointing. Similalrly, all the barrsiters I instruct are are dedicated and hardworking and we know nothing of fat cats in the area of Cornwall where I work.
Whilst rich people can afford justice, the erosion of legal aid makes it hard for all put the very poor to get it and there have been occasions where my boss has been exasperated by me running a case on the basis of the client paying £50 a month towards fees.
In fact in relation to affording justice, I was told very early on in my career that we dealt with the law not necessarily justice!! Finally, £150 for a letter - I don't think so!