This post was initially published on 26 September 2016. It was updated on 2 February 2017 in light of the proposed changes to the training of barristers.
The legal system in England and Wales is vast and can be confusing. This blog will explore how that legal system works. It will examine the people and institutions involved, how the law is enforced and how the law is made. This post looks at the role that barristers play within the legal system and why that role is an important one.
In England and Wales, lawyers are split up into three main professions: legal executives, solicitors and barristers.
EDIT: The Legal Services Act 2007 provides for the regulation of other legal professionals including cost lawyers, conveyancers, patent attorneys and trade mark attorneys. There are approximately 15,000 practicing barristers, over 100,000 solicitors, 20,000 legal executives, 1,500 trade mark attorneys and 2,000 patent attorneys.
Barristers are a vital part of our legal system because they are qualified and trained to give expert legal advice and to represent people in court.
In January 2016, Lord Justice Briggs published his interim report of the Civil Courts. It included proposals for court reform, such as the establishment of an online court. If implemented, this could mark a large change for the role of a barrister; one which is not agreed by regulators. The Bar Council (which regulates the work of barristers) responded that an online court would mark a "fundamental departure" from the adversarial system and the Law Society (which regulates the work of solicitors) warned that an online court is not a universal remedy for the challenges facing the court system.
The House of Commons Library published research in January 2016 showing that as the cuts to legal aid and increases in court fees continue, more people are deciding to appear in court without representation. Between January and March 2014, 80% of all family court cases had at least one party who did not have legal representation. This is a problem. A study, published by the Ministry of Justice in November 2014, which looked at the experiences and support needs of people without representation in family cases, found that only a small minority of people were able to represent themselves competently in all aspects of the proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. Barristers exist to prevent this.
The study also found that people were choosing to appear without representation because without legal aid they simply could not afford it. Access to justice has become a luxury.
Below is a list of questions dealing with the role of a barrister within the legal system in England and Wales.
What is a barrister?
Barristers are legal professionals that provide advice and represent their clients in court. The Bar Council describes the role of a barrister as "to translate and structure their client's view of events into legal arguments and to make persuasive representations which obtain the best possible result for their client."
What is a QC?
A limited number of senior barristers in England and Wales receive 'silk'. This means they become a Queen's Counsel (QC) which is a mark of ability and experience. QCs are normally instructed in very serious or complex cases.
What does a barrister do?
A barrister is qualified to:
- Advise clients on the law and the strength of their case. They can also provide them with a written opinion.
- Advocate on behalf of their clients and the client's solicitor in court; presenting their case, examining and cross-examining witnesses and giving reasons why the court should support the case.
- Negotiate settlements with the other side.
Some barristers are qualified to:
- Conduct litigation (see below).
- Accept instructions directly from a client (rather than the solicitor).
Barristers usually specialise in a particular area of law such as criminal law, chancery law, commercial law or the common law; which includes family law, housing law and employment law.
What is conducting litigation?
Conducting litigation includes:
- Issuing proceedings or applications.
- Acknowledging service of proceedings.
- Giving their address as the address for service.
- Filing documents at court (this does not include skeleton arguments, covering letters to fix trial dates or lodging documents for hearing such as case summaries or chronologies).
- Serving documents on another party.
- Issuing notices of appeal.
A barrister is restricted from performing these tasks unless they have been granted an extension of their practising certificate.
If a barrister does not have the extension, they can advise a client on how to take the steps above. Alternatively, a solicitor can be paid to carry out the tasks.
Can someone approach a barrister directly for advice?
Yes, if the barrister is a member of the Public Access Scheme (sometimes called Direct Access).
In order to accept public access instructions a barrister must:
- Hold a full practising certificate.
- Have undertaken and satisfactorily completed a Bar Standards Board approved training course.
- Notify the Bar Council of their intention to undertake such work.
- Have insurance cover as required by the Bar Standards Board Handbook.
- If qualified for less than three years, a qualified person readily available to provide guidance if necessary.
If a barrister is not a member of the Public Access Scheme, they will be approached by solicitors on behalf of their client.
Where do barristers work?
Most barristers (around 80%) are self-employed. Self-employed barristers are usually independent members of a set of chambers. A set of chambers is a group of independent barristers who share administration costs, including offices, staff, and legal resources. This independence from other members of their set means, unlike solicitor firms, members of the same chambers can act in the same case on opposing sides.
Other barristers are employed in law firms, agencies such as the Crown Prosecution Service or legal departments within local government, business ,and industry.
What duties are barristers bound by?
All barristers are bound by a code of conduct produced by the Bar Standards Board. If a barrister breaches one of these duties, they may be called before a disciplinary panel and as a result face suspension, fines or disbarment.
The code of conduct includes ten core duties:
- To observe their duty to the court in the administration of justice.
- To act in the best interests of each client.
- To act with honesty and integrity.
- To maintain their independence.
- To not behave in a way that is likely to diminish the trust and confidence which the public places in them or the profession.
- To keep the affairs of each client confidential.
- To provide a competent standard of work and service to each client.
- To not discriminate unlawfully against any person.
- To be open and co-operate with their regulators.
- To take reasonable steps to manage their practice, or carry out their role within their practice, competently and in such a way as to achieve compliance with their legal and regulatory obligations.
The first duty is an overarching duty, meaning that if there is a conflict between the duties, this duty takes precedence.
How does someone become a barrister?
There are three key stages:
- Complete a Qualifying Law Degree or an undergraduate degree in another subject then the Graduate Diploma in Law.
- Complete the Bar course (known as the BPTC, previously BVC).
- Complete pupillage (one year spent in barristers' chambers or another organisation approved by the Bar Standards Board as a Pupillage Training Organisation).
It is becoming increasingly difficult to train as a barrister. The Guardian reported in February 2016, that qualifying as a barrister may cost new students up to £127,000.
The number of pupillages being offered also continues to fall. In December 2015, figures published by the Bar Standards Board showed that of the 3,423 BPTC graduates between 2011 and 2013, 2,733 (80%) had still not begun pupillage. In May 2016, figures published revealed only 35% of students who enrolled on the BPTC between 2011 and 2013 have secured pupillage.
You can read about my experience of pupillage applications on the ICLR blog here.
Pupillages last for 12 months and are split into two six month periods. Once a barrister has completed pupillage, those that want to stay in chambers will need to secure tenancy. Some barristers are required to take third sixes before they are able to secure tenancy. A "third six" refers to a third six-month period spent in chambers before gaining tenancy. During this period, the third six pupil practices effectively as a full barrister but is treated within chambers as a second six pupil. This means, they do not contribute to the running costs and are not a voting member of chambers. There is no limit on how many third six pupillages a barrister can undertake and it does not need to last six months. A Bar Council working group is currently investigating whether third six pupils need more protection and is recommending that "third six pupillages" are retitled to "fixed term tenancies". Vacancies for third six pupillages can be found here.
EDIT: Potential changes to training of barristers
On 3 October 2016, the BSB announced a consultation, which was to run until 23 December 2016. The consultation sought views on three proposals to change how barristers are qualified. The consultation deadline was extended and closed on 31 January 2017. On 31 January 2017, the Law Society Gazette published news that more than 500 barristers had signed an open letter opposing the BSB proposals.
The consultation sought views on three proposals:
1. To keep the current three stages.
2. To introduce a new managed pathways approach, where several routes may be authorised including:
- Academic legal education followed by the vocational training followed by work based learning (as in the existing requirements).
- Combined academic and vocational learning followed by work based learning.
- Modular format, in which components of qualification can be acquired separately over time.
3. To introduce a new exam combining academic and professional learning.
The BSB favours the second option because the feel it is "the best approach for ensuring that education and training providers can develop and offer more flexible modes of study" (page 6 of the consultation document).
The consultation document does not deal with the criticism, as put forward by Mark Ablett in the Guardian, that the bar to study the BPTC should be risen. The cost of the BPTC varies between each provider but ranges from £13,000 to £18,500. In May 2016, figures published revealed only 35% of students who enrolled on the BPTC between 2011 and 2013 have secured pupillage. This means that for many students, a career at the Bar is unachievable and that the BPTC is a complete waste of money.