Sir Geoffrey Nice QC, who was appointed Vice Chair of the Bar Standards Board at the start of 2009, can justly claim to having as thorough a knowledge as anyone of the profession he is now helping to regulate. He practised for nearly 30 years from Farrar’s Building where most people did a range of common law work including crime and few came from privileged backgrounds. In his practice, he met and benefited from knowing barristers who accepted that part of their role is “to look after others’ careers” as well as their own, thus reinforcing the tradition of the profession as a form of “guild”. He left Farrar’s Building to become head of chambers at 1 Temple Gardens but soon thereafter started a second, and four and a half year, stint at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. During this period he led the prosecution of Serbia’s once President Milosevic until it was cut short by the death of the accused just before the conclusion of the defence case. Nice returned to 1 Temple Gardens and to a knighthood for his contribution to international law.
He has three daughters: one is a solicitor doing catastrophic personal injury work; another is a barrister who does crime and extradition, and a third is married to a barrister who does a mixture of criminal and civil work which he balances with the responsibilities of being a parent of a baby son. One thing Nice does not tolerate is better-off barristers who patronise their fellows who do “crime” and “family”.
An independent regulator
When I speak to him about the Bar early in April we come back, more than once, to the importance of the independence of the “hired hand” who represents others as a profession. True, we are about to enter a world of Legal Disciplinary Practices (LDPs), Partnerships of Barristers (BOPs) and Alternative Business Structures (ABSs), but he can see the advantage for those who wish to be employed by them in being regulated according to “one rule book”. Were that possible, the public would not have to face lawyers within a single organisation who are subject to different regulation according to the profession they originally joined. Whether it would be preferable for “single” regulation in these circumstances to be by the Solicitors Regulation Authority or by the Bar Standards Board (BSB) is probably moot. The BSB has to regulate its members and rules will or may allow their involvement in these new structures.
Different pressures for both arms of the Bar
By “the Bar” Nice accepts that he generally thinks of the self-employed Bar but he recognises the many duties owed by the Bar Council and the BSB to employed barristers who who are operating in a different environment to chambers and court. He is “absolutely convinced” after his time in The Hague (where he was an employed lawyer, working for the United Nations) that “institutional lawyering” is subject to different pressures and in particular to dangers of “corruption” in decision making, where individuals can shovel off responsibility and bury their errors “somewhere unseen”. The self-employed Bar on the other hand has different standards “of probity and even of industry” and provides a public arena where individual responsibility means you cannot bury those errors: “misbehave in Cardiff today and it will be known about in Norwich tomorrow”, and that could be the end of your career.
He wants to retain that sense of a self-regulating civic society alongside the rules which are being formed and amended by the BSB. What he fears is that if the civic society goes, barristers will do no more than obey the letter of the regulatory law. Both the letter and the less identifiable spirit should be followed by everyone no matter what their practice. He sees no reason why the spotlight should be turned less harshly on the commercial, planning, chancery and other specialist Bars than on those who do publicly funded work.
An aptitude for the Bar
Two things follow from that. The first is that in terms of entry requirements—one of the BSB’s major concerns—the important thing is to get the best people regardless of who they are, though of course access must be equal to all. He favours the aptitude test (which aspiring students will sit for the first time in 2010) as a filter which may help to identify those who have the potential to be advocates who can “fight your corner when you are in difficulties”. “It is a great privilege to fight for someone else”; that “privilege comes with the right of the client to get the right person”.
The second consequence is that a practising barrister should never be structurally exempt from a review of his performance as an advocate. The fact that there has to date not been such review has astonished him since he started out in the profession in 1971. He arrived after having worked, to fund his entry to the Bar, as a personnel officer in industry. With that experience in mind, he was amazed at the barrister’s life-long freedom from appraisal or review. After a year or two in practice, he mentioned his concern to a fellow junior tenant who had been completely absorbed by the then ethos of the Bar on this topic and who asserted that a barrister should never be constructively criticised merely for his performance as an advocate, in the absence of evidence of a disciplinary offence. Nice disapproves of the notion that barristers are “entitled to go on, unsupervised, for the rest of their life”. A decade ago, when he stood for the leadership of the South Eastern Circuit, one of his manifesto proposals was for voluntary, Circuit-staffed mentoring. It would have allowed someone to ask for a senior barrister to sit in during a case and afterwards discuss with him his advocacy and performance. Nice lost the election. He has not lost his belief in the value of continuing appraisal.
Regulating the “brilliant but barely house trained”
His view of regulation is that it has to be “stern in the face of wrongdoing, sufficient to discipline barristers when they err”—even if inadvertently, if the cause is serious enough—but not so invasive and irritatingly “politically correct” as to stop great individualists like John Mortimer or James Hunt—and others who might be described as “brilliant but barely house trained”. Nice sees them as adornments of the Bar because they have the qualities that the Bar has rightly been famous for. “So somehow we have got to discipline but nevertheless allow for continued entry at the Bar of clever people of all possible types who can do the job of representing other people”. Part of the proper business of advocacy is “investing in the person represented with the charm and the personality of the advocate”.
Since becoming Vice-Chair his tasks have included attending the various BSB committees and also helping to steer the board in its new relationship with the Legal Services Board and the Office for Legal Complaints. The independence from the representative arm of the Bar Council also needs refining, as required by the Legal Services Act 2007 (he last had regular contact with Desmond Browne QC when they were both young barristers and shared libel reading for The Daily Express). He brings to this his experience in publicly funded work, civil, crime, personal injury and international law which have given him an insight into the “generic shortcomings” of both the employed and the self-employed Bar.
He combines the job with his practice which has again taken him abroad. He has recently been instructed by citizen groups in the Sudan in the light of the International Criminal Court issuing an international arrest warrant for the President of Sudan on charges arising from the situation in Darfur. This is a field in which Nice is a master and which clearly still excites him. He remains opposed to the politicisation of these courts and feels that lawyers have to learn to live with the decisions taken by politicians and to recognise that the role of the law is necessarily confined. Lawyers seeking personal publicity or seeking to exercise political power are never edifying sights. In the Darfur case genocide was always going to be very difficult to prove and the warrant for genocide was refused despite it being presented in an extraordinary fanfare of publicity.
Nice’s ideal advocate is “the independent lawyer whose only currency is being seen to have stood up for his client to the limit of his ability without giving into any other pressure”. The Bar, employed and self-employed, could hardly disagree.
David Wurtzel is Counsel’s Consultant Editor