JUNIOR BAR POINT OF VIEW: THE FUTURE OF THE INDEPENDENT REFERRAL BAR A NORTHERN IRELAND PERSPECTIVE

Transcription

1 JUNIOR BAR POINT OF VIEW: THE FUTURE OF THE INDEPENDENT REFERRAL BAR A NORTHERN IRELAND PERSPECTIVE Introduction 1. Given we are at the World Bar Conference, I thought I would open by quoting from an American, the former Supreme Court Justice Harry Blackmun. He once said that a speaker at a legal event was a lot like a corpse at an Irish wake his presence was necessary to justify the occasion, but nobody expects him to say too much. 2. I will therefore bear in mind the need for brevity. 3. The topic for discussion is the future of the independent referral bar. I have been a criminal defence barrister in Northern Ireland for 6 years. For one of those years I was Chairman of the Young Bar Association and for the last 2 I have been the Membership Secretary of the Criminal Bar Association and a member of the Bar Council. Through those roles I have had many conversations with members of our Bar Library - predominantly younger members who unfortunately question whether there is a present for the profession, never mind a future. 4. It would be very easy to stand here and lament the present state of the Bar, but thanks to great organisations like The International Council of Advocates and Barristers we are able to discuss and debate positive ways to ensure that our profession not only survives but hopefully continues to thrive. 1

2 Excellence in advocacy for our clients, vocation and society 5. In Northern Ireland, despite the difficulties the profession may face, most barristers are buoyed by the belief and passion that there is the need and necessity for an independent referral Bar. During a House of Lords debate in December 2013 which focussed on legal aid cuts, the appropriately named Lord Hope provided a wonderful description of the independent Bar. He said: Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. 6. At the Northern Ireland Bar Conference held nearly 3 years ago entitled Innovation and the Law, another Law Lord, Lord Carswell, as a conference delegate, got to his feet after a speaker had discussed the future role of a barrister given modern technological advancements. He said: As barristers we are not merely skilled tradesmen we are professionals, and as professionals we owe a higher duty to our clients, our vocation and our society. 7. As the present cohort of barristers and advocates, we are bound as the custodians of our profession to ensure there is a future for the independent referral Bar. As Lord Carswell said, we owe it to our clients, our vocation and our society. 8. If the question is how do we do we ensure a future for the independent referral Bar, the answer would be multifaceted. Bearing in mind the brevity I promised at the outset, I intend to focus on one element, that is, ensuring the continuation of the independent referral Bar through the maintenance of its core value: excellence in advocacy and the art of persuasion. 2

3 9. If I can, I intend to separate the importance of advocacy into 3 overlapping strands. Strand 1, excellence in advocacy to ensure a robust independent Bar for our clients and our vocation, Strand 2, excellence in advocacy to ensure a resilient independent Bar for our vocation and society, and Strand 3, excellence in advocacy to ensure a secure Bar for society and for further afield. Strand So firstly, excellence in advocacy to help our clients and our vocation. This can be dealt with in brief compass, because it is a theme we are all familiar with that is, the need to ensure excellence in the quality of our advocacy in our courts, in our written arguments, our mediations, arbitrations and negotiations. That can be achieved by a fair and competent selection process for future bar trainees, effective education, support and mentoring during pupillage and beyond, ongoing training throughout a barrister s career progression, suitable quality assurance and appropriate continuing professional development. 11. With the maintenance of high quality training and properly assessed quality assurance we can help set ourselves apart as the experts in our field for the benefit of our individual clients and for the mutual benefit of our vocation. Strand Secondly, Strand 2, excellence in advocacy to help our vocation and our society. It is often said that a lawyer who represents himself has a fool for a client. Setting that thought aside though, it is important that we can advocate for our profession as fearlessly as we do for the accused person seemingly outnumbered by the mite of the State. What I am referring to is the use of advocacy outside of the sphere of litigation to influence those who will make decisions about the future of our profession to ensure those decisions best protect our clients, our profession and ultimately society. That group I believe needs to be influenced is of course our politicians. 3

4 13. The reason I want to reflect on our professions need to engage politically comes on the back of a personal involvement in the recent struggle by the Northern Ireland Criminal Bar to reverse devastating legal aids cuts. In February of this year, the Northern Ireland Criminal Bar ended a 9 month withdrawal of services in the Crown Court, the court which deals with the most serious criminal cases. The government had proposed cavernous cuts to criminal legal aid funding, reducing brief fees by 50% compared to those paid 11 years ago. This was met with widespread public and political support. 14. The withdrawal of services followed 18 months of intense discussions with politicians and officials, which despite best efforts sadly bore little fruit. It was during the period of withdrawal that I wondered whether better political engagement at an earlier stage could have averted the crisis witnessed in our Crown Courts or at least could have brought about the positive resolution which was eventually found much sooner. 15. In Northern Ireland (and I am sure in other countries) many of the factors attacking our profession are within the control and the gift of our politicians be it legal regulation, overbearing quality assurance, restrictions on access to justice, reconfiguration of the court structures or reductions in legal aid fees. For that reason, I believe the prosperous future for our vocation and ultimately society through excellence in representation could flow from positive political engagement. 16. By way of very brief history, after the foundation of the Northern Ireland state in 1921 a Parliament was formed. Despite severe criticism of its alleged partisan approach, it was not until 1972 following civil strife and years of violence that the Parliament collapsed. From that date Northern Ireland was ruled directly from London, with English ministers appointed to look after our local affairs. Terror reigned on the streets with over 3,000 people being killed along sectarian lines, many thousands injured and the economy in tatters. As of 1998 a fragile peace was established and a new Parliament in the form of the Northern Ireland Assembly was 4

5 created based on the principles of equality and mutual respect. It has been the span of a child s lifetime of 18 years since the Assembly was formed and it has limped and faltered at various stages, with the Assembly at times being suspended and at times appearing to be on the verge of permanent collapse. 17. There has therefore been a gulf of over 40 years in settled government in Northern Ireland. Recently there has been much more recognisable political stability and it is hoped that the stability continues. But that has left us with a legislature still in its relatively embryonic stage. There are very few Assembly members with a legal background and sometimes it is apparent. 18. Political engagement between the Bar Council and our political parties has received a much needed boost through the foresight and commitment of our recent Chairpersons, including our former Chairman Mark Mulholland QC who spoke to the conference yesterday. This good work has been continued during the tenure of our current Chairman Gerry McAlinden QC through the allocation of additional resources to fund new posts in policy, PR and communications. 19. But over and above this, in light of the lessons learned during the withdrawal of services, the membership of the Bar is wakening up to the need for a culture shift towards having its individual members and Associations better support the lead of the Bar Council in its endeavours towards fostering better relations with local politicians. I believe that alongside the excellent work of the Bar Council it is incumbent on the individual member of the Bar Library and the Bar Associations to play a role in informing and educating our politicians of the difficult and complex work we do, to build positive enduring relationships, offer opportunities to observe cases in action, and assist in legislative consultation processes rather than simply appearing with a begging bowl when legally aided fees are under threat. A better working relationship been the Bar and the Northern Ireland Assembly based on mutual respect but with the confidence to stand up and defend injustices if they appear can only better serve the public. 5

6 20. I recently read the memoirs of the Irish barrister and later High Court Judge in England, James Comyn. One line amongst many stood out to me: With a free and fearless Bar, no country need fear. 21. If we remain an independent and fearless Bar, our society will be a safer place for it. Strand But from the need for a fearless Bar to protect the best interests of society, I move on to the third strand of the need for excellence in advocacy. The example set by our independent Bar many of whom will be members of an independent judiciary in years to come plays an important role not only in the society that is Northern Ireland, but to the societies elsewhere in the world where the rule of law is not respected. 23. In 1994 the United Nations Commission on Human Rights records that it was: Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice. 24. We should not forget the brave and admirable role of many lawyers throughout the world who defend human rights in countries where the rule of law is at present nothing more than an aspirational vision. 25. Lord Bingham, one of the greatest judges of modern times, in his 1996 lecture on Judicial Independence said: The need to guarantee judicial independence is accordingly one which we should treat very seriously, not only for the health of our own country but because of the 6

7 extent to which our own conduct is still seen by other countries, to an extent which may perhaps surprise us, as a model. 26. In an era when global eyes are on the UK to observe whether it withdraws from the EU or repeals the Human Rights Act, we should bear in the mind the role individual independent lawyers have in persuading those with influence of the unspeakable consequences which could flow from such decisions. 27. With that in mind, I will humbly add to the statement Lord Carswell espoused at the Bar Conference in Belfast nearly 3 years ago. As professionals operating at the independent referral Bar in a common law legal system, we owe a higher duty not only to our clients, our vocation and our society but to those on the world stage who look towards our legal system as an ideal. 28. And on that note, given we are in Edinburgh, I will finish by quoting from a Scottish advocate, Joanna Cherry QC MP, who was quoting from another prominent Scottish lady when she made her maiden speech in the House of Commons last year: My message to the House, and in particular those on Government Benches, when considering whether to repeal the [Human Rights] Act and leave the European Convention on Human Rights, can best be summarized by the words of my fellow countrywoman, Mary Queen of Scots, when she was on trial for her life before an English court: Look to your consciences and remember that the theatre of the world is wider than the kingdom of England. Michael Forde BL 7