Do We Need Barristers?

What are the strengths and weaknesses of the distinction between solicitors and barristers? What is the purpose of the independent Bar in our legal system today? How does England and Wales compare with common law jurisdictions which have abandoned, or have never had, a split profession?

Is the Bar’s history as a bastion of privilege, its various historical monopolies and prerogatives, and its culture and organisation problematic? What are the benefits of an independent Bar?

A lecture by Leslie Thomas KC recorded on 2 February 2023 at Barnard's Inn Hall, London.

The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/barristers

Gresham College has offered free public lectures for over 400 years, thanks to the generosity of our supporters. There are currently over 2,500 lectures free to access. We believe that everyone should have the opportunity to learn from some of the greatest minds. To support Gresham's mission, please consider making a donation: https://gresham.ac.uk/support/

Website:  https://gresham.ac.uk
Twitter:  https://twitter.com/greshamcollege
Facebook: https://facebook.com/greshamcollege
Instagram: https://instagram.com/greshamcollege

Transcript

0:00

(logo whooshing)- Do we need barristers? England and Wales, we have a split profession with a traditional distinction between solicitors and barristers. This contrast with many other countries, including many in the common law world, which only have one type of lawyer. England and Wales is of course not the only place to have a split profession. Some jurisdictions have a split profession based on the English model. Such as Northern Ireland and the Republic of Ireland. And other countries split the profession, it has evolved differently, separately. For example, in South Africa whose law is a mix of English and Roman Dutch influences this split profession, but the branches are called attorneys and advocates. And some civil law systems have a split between advocates and notaries. However, many jurisdictions whose law is derived from English law have abandoned the split profession. For example, in the islands of the Eastern Caribbean where I practice. And many countries in the commonwealth, there's no longer a division between solicitors and barristers. All lawyers are admitted as attorneys and perform the function of both solicitors and barristers. So the question's got to be asked, what are the differences between a solicitor and a barrister? Let me see if I can help. Traditionally in England, solicitors had a monopoly on the conduct of litigation. That meant taking steps like issuing proceedings in court on behalf of the client, filing documents, paying court fees and barristers were not allowed to conduct litigation nor were they allowed to handle client money. Conversely, barristers had a monopoly on the audience in the higher courts. That is the right to argue cases in court. And although solicitors were allowed to argue before the magistrates in the county court, only barristers were allowed to argue in the crown court, the Court of Appeal, the high court, and the as it was then the House of Lords. Another tradition was that clients did not instruct barristers directly. They instructed the solicitor who in turn instructed the barrister to argue on their behalf. The relationship of client with the barrister was also different in terms of the relationship between a solicitor. For example, originally a barrister couldn't be sued for professional negligence in representing the client, whereas a solicitor could. And a barrister could not sue the client for unpaid fees, whereas a solicitor could. In the last few decades, many of these things have changed. Solicitors can now qualify as solicitor advocates, which give them rights of audience in high courts. And many barristers are now qualified to accept instructions directly from clients through the bar public access scheme. And a smaller number are now qualified to conduct litigation. And barristers can now be sued in negligence and can sue solicitors for their fees. However, it remains the case that the working life of a typical barrister and that of a typical solicitor are quite different. Most barristers are self-employed, work in chambers. That's just a posh word for a set of offices, Which are not firms but are an association of individual self-employed barristers. By contrast, most solicitors work in firms either as employees or partners with other solicitors and most barristers still get the bulk of their work through instructions from solicitors, not clients directly. And most barristers still carry out a lot of courtroom advocacy then most solicitors do. But this is a generalization and there are exceptions. Even solicitors who are not solicitor advocates carry out advocacy in the lower courts and tribunals. And some solicitors spend a lot of their working lives carrying out advocacy and some barristers spend nearly all of their working lives, not going near a court and performing advocacy. In addition to conducting litigation, many solicitors spend a lot of time on what's described as non litigious work. This includes tasks such as drawing up and advising on contracts, carrying out conveyance in. But again, this is a generalization. And as I've indicated, there are a lot of barristers who spend a great deal of time on non litigious work. And to make it even more complicated, there are also employed barristers, some of whom work in-house alongside solicitors for companies and government departments and some actually work in law firms, solicitors law firms. You see, or you can see from everything I've just said, it isn't really easy to summarize the differences between solicitors and barristers. For a lay audience, sometimes people just use the shorthand of saying that solicitors are generalists and barristers are specialists, but this isn't really accurate. Some solicitors have highly specialized practices and some barristers are very much generalists. And any statement we might make about the differences between the two professions is inevitably subject to exceptions. Ensure the difference or the differences between barristers and solicitors is quite often a confusing one for the general public. In this lecture, we're going to have a look at the history of the split profession, why it exists, its advantages, its disadvantages, and whether we still need it in a modern world. The lecture will focus on the professions of barrister and solicitor. But it's important to acknowledge that these are not the only legal professions. We have chartered legal executives who are also part of the profession. And there are other regulated professions that perform legal work, license conveyancers, cost draftsman, regulated immigration advisors. But as I say, the focus of this lecture will be on the barrister solicitor split. Do we need a split profession or should the professions be fused? Let's turn to the history of the split profession. You see, in order to understand why we have a split profession, we need to dive into the history of the English legal system. And this will necessarily only be a brief overview as it's a subject where people have written entire books on the subject. Today, we're familiar with the two branches of the profession, solicitors and barristers. But at one time did you know there were five attorneys, solicitors, barristers, proctors, and advocates? From its inception in the 13th century, the legal profession in the common law courts of England was divided into two branches. The first branch was the pleaders, the forerunners to the modern barrister. The leaders of this profession were called sergeants. Which came from the Latin, servi regis ad legem or forgive my (laughs) Latin pronunciation. Which translates servants of the king at law. Junior members of the profession were originally called apprentices at law. They began to congregate in Inns which developed into the Inns of Court the professional societies for barristers which still exist today. Their role was to speak for their client in court and argue their client's case. By the 17th century, the term barrister came into general use and was used in place of the older apprentice at law. The second branch was the attorneys. Attorney originally means agent, which is why we still use that term today in a different context when we refer to non-lawyers. When a person is given a power of attorney to handle another person's affairs. Attorneys acted as agents for their clients in the conduct of litigation. In contrast, barristers who only spoke for the client in court. Up until the middle of the 16th century, practicing attorneys were allowed to join Inns of Courts. And the the division between the apprentices or at law and the attorneys was not rigid. However, the division became increasingly rigid in the 16th century when the Inns of Court began to exclude practicing attorneys and regulate them to different sets of Inns, the Inns of Chancery. And the Inns of Chancery have since faded into history, but you can still see their legacy in some names in the city of London such as Barnard's Inn or Furnival Inn. By the end of the 18th century, the policy of excluding practicing attorneys from call to the bar was well established. So by this stage there was a clear division between the two professions. They were also regulated differently. Attorneys were officers of the court and were strictly regulated by the court often being harshly punished for minor breaches of the rules. By contrast, barristers were principally regulated by their own professional bodies, the Inns of Court. As well as by restrictive rules of professional etiquette. Another legal profession which grew up alongside attorneys and barristers were the solicitors. By way of background from the late middle ages until the 19th century, there was a separation between the courts of common law and the courts of equity. The Courts of the King's Bench and the Courts of the Common Pleas administered the common law. Which tended to be rigid and rule-bound. The Court of Chancery presided over by the Lord Chancellor administered equity which tended to be more flexible and less rigid. Solicitors did the same kind of work in the Courts of Chancery, that's bar.... That's forgive me, attorneys did in the courts of common law. And we can see the legacy of this divide in the structure of the high court today, which still has king's bench division and a chancery division. To make things even more confusing, there were two more branches of the legal profession, proctors and advocates. Now these lawyers practiced in the Ecclesiastical courts and had jurisdiction over probate and divorce as well as church matters. While the admiralty courts had jurisdiction over shipping matters. Those courts administered civil law, which was derived from Roman law rather than English common law. Whereas common law was taught in the Inns of Court. Roman law was taught at the universities of Oxford and Cambridge. The advocates had their own professional body called the Doctors' Commons, which was immortalized in Dickens novel, "David Copperfield". During the 19th century there was a process of consolidation of the courts in the legal profession. In 1857, parliament created the Court of Probate and the Court for Divorce and Matrimonial Causes. In which barristers could practice, which meant that advocates of doctors common lost their monopoly over probate and divorce. Most proctors thereafter joined the ranks of solicitors and Doctors' Commons died out by the late 19th century. Another big change came with the Judicature Act of 1873, which merged the superior courts of the common law and equity into a single high court as we know it today. Which administers both common law and equity. And that act merged the professions of attorney and solicitors into one and also provided that they should thereafter be known as solicitors and that remains the case today. So let's turn to barristers. We've already touched on the history of barristers as a profession, but let's just look at this in a little bit more detail. As I said earlier, originally the leaders of the profession were sergeants. The sergeants had their own inn, Sergeants Inn and ranked higher than ordinary barristers. Judges were drawn from the ranks of sergeants. However, over time the sergeants declined and after the 1873 Act, no more were appointed. The title survives only in the title of the Common Sergeant of London, which is a senior judge at the Old Bailey. Meanwhile, the offices of the Attorney General and Solicitor General developed as the king's representatives in the courts. Confusingly in modern times, these offices have almost always been held by barristers, not solicitors. And with the development of the modern system of cabinet government, the attorney general and the solicitor general became government ministers and they still are today. From the reign of Elizabeth the first onwards, there was a body of barristers retained by the crown called King's Council. In 1603, James the first appointed Francis Bacon as one of her council's learned in the law. And this was the origin of the modern rank of King's Council KC. Originally King's Council were appointed to advise the king and his law officers. However, over time it became a title of honor that was conferred on professionally, eminent, or politically influential barristers. Historically, King's Council could not appear against the crown except by special license, but this rule was abolished in 1920. As most people know, we still have the title of King's Council today, I am a KC. Until relatively recently it was the Lord Chancellor, a cabinet minister who appointed King's Council after confidential consultation with senior judges and senior barristers. The process was completely lacking in transparency. Like the former judicial appointments, a process that I discussed in my last lecture. However, in 2005, an independence appointment panel was introduced and the process today is much more transparent and less political. Let's turn to the training of barristers. The training of barristers has changed significantly over centuries. Historically, the Inns of Court were responsible for the training. Until the 18th century, the universities of Oxford and Cambridge did not teach English common law. They only taught civil law. That is Roman law. Barristers received their legal training from the Inns where they observed proceedings in court, took notes, practiced in moots, that's a mock hearing or trial on a legal issue. And by the 15th and 16th centuries attended readings and lectures. However, by the 17th century, this system of legal education had decayed and all students had to be called to the bar. All they had to do was to be required to eat a number of dinners at their Inns of Court. I kid you not. The process of eating dinners, certainly continued up until the time I was called in 1988 to eat 24 dinners. But I had to do a bit more than just eat 24 dinners.(audience laughing) The 19th century saw significant improvements. A parliamentary select committee in 1846 harshly criticized the system of legal education. Hardly surprising. The four Inns created the Council of Legal Education in 1850 and in 1872 it became compulsory for an examination to be passed before call to the bar. English law degrees were established at the universities of Oxford and Cambridge and Durham. And in the 1850s and later in the 19th century, the new civic universities began to offer law degrees. In 1959 it became compulsory to do a complete a period of 12 months pupillage. That's essentially a term for a shadowing a barrister around and seeing and working with that barrister who supervised the pupil. So 12 months pupillage in chambers, posh word for offices, after call to the bar. And from 1965, pupils were prohibited from taking cases during their first six months of practice. Just stop and think about that. Before then, you just ate dinners and then you were let loose on the public.(audience laughing) Then you still had to eat dinners, but you had to do some training. But on your first day of training, you could be let loose on the public. And it wasn't until, as I say 1965, that pupils were prohibited from being let loose on the public without a period of supervision. There were further changes in the late 20th century. The bar first required barristers to have a university degree in 1975. Again, just to stop and think about that. So before 1975, you didn't even need a university degree to be let loose on the public. In 1967, the Inns of Court established the Inns of Court School of Law with a permanent teaching staff. And in 1989, the bar finals, that's the examination that barristers have to complete, required examinations for court to the bar that was replaced by the bar vocational course BVC. The Inns of Court School of Law had a monopoly on the BVC until 1997 when it was opened up to universities. And the BVC has been renamed. It's now I think the bar professional training course. It keeps on changing, it's very hard to keep up with what it's called but it's the Bar Professional Training course. That's a nice photograph of the Inns. I do you believe that's Lincoln's Inn. Now one thing that's important to understand is that historically there has been a strong class divide between barristers on the one hand and attorneys and solicitors on the other. You may be wondering why or due to the expense of education at the Inns of Court, barristers were generally drawn from wealthier families of higher social status. While attorneys and solicitors were of lower social status. Barrister themselves looked down on attorneys and solicitors. In 1614, the benchers of the Inns of Court described attorneys and solicitors as ministerial persons of an inferior nature. In 1666, they were described even more harshly as immaterial persons of an inferior nature.(audience laughing) This snobbery remained the case for two centuries later. In the debate in parliament on the County Courts Act in 1846, which allowed attorneys a right of audience in the county courts, the Attorney General said the following, in opposing the bill,"The business of the advocate in all of our courts, superior and inferior, should be conducted by men of trained education as advocates of established position as gentlemen as men of honor. He did not believe that any one of these was visionary enough to imagine that it could be or would be an advantage to dispense with the advocacy of a class of men who had enjoyed the highest education and who were known to be influenced by the highest feelings. If any monopoly at all were allowed to exist, it would surely be better to place it in the hands of highly educated class of men rather than those of an inferior class." That tells you a great deal about the prevailing attitudes of barristers towards attorneys and solicitors in the 19th century. Of course, this is not to deny that some attorneys achieved wealth, fame, and distinction or that some barristers made little money. The apparatus of Gilbert and Sullivan are an interesting insight into the legal profession in the 19th century since Gilbert himself was a barrister who had been unsuccessful in the profession. In trial by jury, the judge sings about his time as an impoverished young barrister who did not get sufficient work until he promised to marry the daughter of a rich attorney. He sings, I'm not going to sing it, I'll spare you that."I grew tired of third class journeys and dinners of bread and water." Conversely, H.M.S Pinafore, Sir Joseph Porter sings about his own rise from an office boy to an attorney's firm, to a junior clerk, to an article clerk to partner and ultimately to a member of Parliament and the first Lord of the Admiralty. But the structure of the profession of the bar where barristers had to pay their own way until they could attract sufficient work to make money typically meant that the bar was closed to people who were not from monied backgrounds. To an extent, the problem survived into modern times. When I came to the bar, it was still the case that many pupil barristers were unpaid during their training, as was I. Think about that. You train, you do your degree, you then do the bar course. You then before you are let loose in the public, you have to do a year's training with no pay. In Edmonds against Lawson, a case in 2000, an unpaid pupil barrister sued claiming that she was a worker and was entitled to a minimum wage. She won at first instance lost in the Court of Appeal. But nowadays chambers, another word for posh word for offices, are required to pay their pupils. But this rule was only introduced in 2003 and it remains the case that many barristers who primarily do legal aid work, suffer financial hardships in their early years of practice and need financial help from their family. And this continues to make the bar less accessible to people from poorer backgrounds. And just to add in there, you would've seen recently just last autumn the profession, particularly the criminal bar who was striking because of the extremely poor levels of pay that they were receiving in the, I should say, in England and Wales. And although the class divide between barristers and solicitors is much less strong today, some of it still remains. In my experience, the title of barristers, barrister still attracts a certain amount of social distinction and deference and the bar is still very much part of the establishment. And it maintains much of its traditional pump and ceremony from wearing wigs and gowns to eating dinners at the Inns. That still happens today. Another important factor is the prestige of barristers is that traditionally the appointments to the senior judiciary, the High Court, Court of Appeal, the Supreme Court, have been reserved for barristers. This is no longer the case and it's now possible for solicitors to be appointed from to the senior judiciary and for legal academics to be appointed. But overwhelmingly most senior judges still come from the bar. Finally, let's have a look at who regulates barristers. So there are four Inns of Courts, I should say who they are. Inner Temple, Middle Temple, Gray's Inn, Lincoln's Inn. And as the professional society for barristers, they survive to the present day. Everyone who wants to be called to the bar still has to join an inn first. In 1895, the general council of the bar or the bar council was created as an overarching professional body for the bar. The Inns, the bar council regulated barristers. That is until 2006 when the Bar Standards Board was created as a separate regulatory body. I should say, I'm member of the Bar Standards Board today. Technically speaking, the Bar Standards Board is a committee of the bar council, but it operates autonomously in its regulation of barristers. It's nice photograph there of the high court down in the Strand. So let's look at a split profession and a fused profession. Now we've traced the history of the split profession. We now know why we have the division between barristers and solicitors and what each of them do on a day-to-day basis. Which brings me on to the central question of this lecture, do we need barristers? Or more precisely, do we need a split profession? Now I practice here in England and Wales, which has a split profession and I also practice in other jurisdictions, which does not such as the, some of the islands in the Eastern Caribbean. Which like many parts of the commonwealth have a fused profession. So I think I'm in a reasonably good position to compare and contrast the two. That said, comparing the practice of law in two jurisdictions is necessarily an imperfect exercise. The jurisdictions of the Eastern Caribbean are much smaller than England and Wales with a much smaller bar and no two jurisdictions are exactly alike in the nature of their legal problems. Let's start with some possible advantages of a split profession and then we'll look at the counter-arguments. A common argument in defense of the split profession is that barristers, we are professional advocates. We spend our whole career doing written and oral advocacy. We spend time crafting art. And since our day-to-day workload is so different from that of solicitors, we develop a different skill set. And so with our skills as honed advocates, we bring something additional to the table, a different skillset, significant value. And in my career, for example, I've cross-examined so many witnesses often in very difficult circumstances. And you know, speaking for myself, I feel very comfortable with cross examination than in comparison with a lawyer who rarely does it. And this is an argument that is often made by barristers in defense of a split profession. In 2018, for example, the then chairman of the bar, Andrew Walker QC, as he then was said this,"The bars focus is on advocacy and on the expertise of running trials. Whereas although there is a litigation element for solicitors, their work is primarily on the transactional work which generates so much of our earnings." Another advantage is that when a solicitor instructs a barrister, the barrister can sometimes offer an objective and detached view of the case. You see, the solicitor may have been working on the client's case for months, years, and may have got to know client really well, may be invested, and rightly so in obtain a success for the client. By contrast, the barrister with a shorter involvement in the case and more detachment from the client may be able to offer more detached and they say impartial view. All of us lawyers know that when you're knee deep in a case it can sometimes be difficult to see the forest from the trees. As Hon Sir Owen Dixon, a former chief justice of the High Court of Australia said in 1952,"The work of solicitors is in the administration of justice has the greatest possible importance, but their allegiance is perhaps more to their clients who have a more permanent or at all event, a longer relation with them than the transitory relation between client and council. When the full enthusiasm and force of the advocate are attached to the individual for a shorter space of time." This objectivity and independence can also be valuable in context where the client isn't an individual. For example, when the Crown Prosecution Service or CPS prosecutes a case in the crown court, it typically instructs barristers who are not themselves employed by the CPS. Many of these barristers may have experience of defense work as well as prosecution work and as such they have a measure of independence from the CPS. And as such, may be able to take a more objective view than a traditional insider. A third advantage is that in a particular case the barrister may have expertise that the solicitor lacks. For example, if you're criminal defense solicitor, you have to deal with and you have to deal with an immigration issue that arises in your case, which is outside your expertise. You might want to instruct a specialist immigration barrister. But there are of course possible answers to each of these points. All of these points that I've mentioned, they're fused profession. There's no reason why we couldn't have some lawyers who primarily focus as advocates and others who are primarily litigators. Indeed, we already have solicitor advocates in England, many of whom have years of experience of courtroom advocacy under their belt and are highly skilled at it while being solicitors. Nor is there any reason why lawyers couldn't bring on other lawyers to assist them in cases just as solicitors presently instruct barristers. In fact, in my experience in the Eastern Caribbean, this happens all the time. An attorney with a big case might bring on a senior attorney at another firm to serve as leading council, just as a big case in England would have leading and junior council. So none of the points I've raised is self evidently a reason to maintain a split profession. So let's move on as time is tight to look at some of the disadvantages of a split profession. Some of these are not necessarily disadvantages of a split profession in abstract, but are disadvantages of the split profession as it currently functions in England and Wales. One major disadvantage is the fact that most barristers are self-employed and work in within barristers chambers, posh word for offices, which are associations of self-employed barristers rather than firms. Barristers are not salaried and are reliant on fees. This creates a range of problems. Firstly, as I highlighted earlier, junior barristers who do primarily publicly funded work, legal aid work often suffer financial hardship in their early years. This is because legal aid fees tend to take a long time to come through. And in some areas such as crime, the fees are insultingly low. While barristers can earn better fees from winning civil cases or judicial review, administrative law cases. They can secure their fees between the parties and sometimes on some of these cases, fees might be in dispute. And if you have a fee dispute, you have to have that resolved by a judge who's known as a cost judge and that might take a long time. So many junior barristers may struggle financially for years after completing pupillage and many need help from their family. This is a huge deterrent, particularly for working class people who want to come to the bar. It also tends to push aspiring barristers into better paid areas of work, commercial work. Another problem associated with the self-employment system is the fee in equality. This is a controversial subject and I will only touch upon it briefly here, but there can often be significant inequalities in work and fees between different members of the same chambers, posh word for office. Sometimes these inequalities replicate broader inequalities in society such as race, gender, class, disability. A third problem is that barristers aren't employees and therefore have no right to holiday pay, sick pay, employers pension schemes, paid parental leave, or any of the other benefits associated with being an employee. Many chambers though do have insurance policies and pension schemes for their barristers, but these are voluntary and not all barristers can afford to participate in them. For the reasons I've already explained about the difficulties in the early years of practice. In short, the self-employed bar can often be a sink or swim system whereby it's difficult for marginalized peoples to make a living. This is admittedly mitigated by the strong sense of solidarity and collegiality that often exists between barristers. Many sources of help exist including, for example, in my own chambers, the Inns of Court, the bar council. There's some great things about the bar such as the Bar Mutual Indemnity Fund, which provides professional indemnity insurance for all barristers. And it's far better than trying to shop around and get insurance on from the private market. So I'm certainly not suggesting that the bar has an everyone for themselves culture, it does not. Nor am I trying to discourage anyone from coming to the bar, I am not in. In fact, I've spent a great deal of my working life trying to encourage people of color, people from different socio backgrounds, women, to come because the bar needs to be diverse. However, it cannot be ignored that the bar, the structure of the self-employed bar naturally creates inequality and hardship. And this isn't the fault of individual barristers or indeed they're chambers, but it's one of the system that has been inherited. And the problems with self-employment aren't limited to fees. Administering a barrister's chambers presents a unique set of challenges for management and staff because barristers are not partners. They're self-employed individuals who share the same place of work. Members of chambers can and sometimes do appear against one another in court, sometimes on the same case. So aside from the self-employment system, another major problem with the split profession is apparently the arbitrary lines between what a solicitor can do and what a barrister can do. Barristers, unless we've been specially authorized to, we cannot conduct litigation. This means a barrister commits a criminal offense if for example, they issue court proceedings on behalf of the client. The boundaries of the conduct of litigation are blurred. However, barristers are allowed to file certain things with the court such as bundles, authorities, skeleton arguments. And you see these rules can be especially complex and difficult when conducting public access work where a barrister is instructed directly by a client. And such a case a client has to conduct the litigation themselves, which means that they have to file the documents with the court. There are also limits to what public access barristers are permitted to do in terms of gathering evidence. This often creates difficulties for public access barristers and it can be very easy to unintentionally breach the rules. It's also difficult for clients to understand what the differences are between what the barrister can do and what the barrister can't do. What a solicitor can do and what the solicitor can't do. And these problems wouldn't necessarily be alleviated by more barristers being authorized to conduct litigation. Since more barristers are self-employed and don't work in firms, many barristers don't have the administrative support systems in place that would allow them to necessarily conduct litigation efficiently. You see the restrictions on one side of the coin are just as arbitrary. Let's look at those. Barristers and solicitors advocates have a monopoly on the rights of audience in the Crown Court, High Court and Court of Appeal and Supreme Court, but not in the magistrate's court or the county court. Now we've already looked at the historical origins of this distinction, but it doesn't make a great deal of sense in the modern world. After all, the same skillset is required to conduct effective advocacy if it's an inferior court if or if it's a superior court. If solicitors can be trusted to carry out advocacy in some of the courts, why not all of the courts? It's no answer to say,"Well the magistrate's courts and the county courts tend to deal with less serious cases." The county courts now routinely deal with a lot of high value civil cases as well as high stakes litigation such as possession claims, actions against the police where people may lose their home or their liberty. The magistrates courts, including the youth court where children can be tried for relatively serious offenses. Solicitors can also carry out advocacy in tribunals and some tribunals are of immense important individuals. For instance, a tribunal hearing an asylum claim, which could be literally the matter of life or death. If a person has to be returned to a country, they say they are being persecuted. That said, as I've said already, advocacy is a specialist skill and it's true that barristers and solicitor advocates tend to have much greater experience of advocacy than does the average solicitor. But that doesn't justify drawing an arbitrary line between superior and inferior courts, which exists only for historical reasons. An interesting aside, despite the Eastern Caribbean having a few profession, the historical divide between solicitors and barristers is still of some importance there. In England, the rule that barristers were immune from actions in negligence has been abolished by case law, but in many jurisdictions in the Commonwealth Caribbean it till exists. It gives rise to significant ambiguity about which types of legal work are immune from negligence claims and which are not. Since it is only the work of an advocate, which that attracts the immunity, not everything done by the lawyer. I should make clear that this is not an argument against defuse profession. Rather it's an argument against maintaining archaic immunity. Which has been consigned to history in England and should equally be consigned to history in Commonwealth Caribbean. So let me come to my conclusions. My overall view, which will no doubt be controversial among my colleagues at the bar, is that there is in principle no sensible reason for a split profession. The separation between solicitors and barristers exists mainly for historical reasons. The lines that are drawn between the two professions don't make a great deal of sense in the modern world. And the structure of the bar where most barristers are self-employed creates avoidable difficulties. It's true barristers often bring significant benefits to our cases due to their specialists skill and advocacy and our independence. Similarly, it's true that solicitors often have skills and experience that most barristers do not, but this does not necessarily require a rigid separation between the two professions, nor does it justify the arbitrary limits on what each can do. That said, I'm not necessarily calling for an immediate change. It would be very difficult and very disruptive to fuse the profession overnight. And we need to recognize that the structure of the legal profession does not exist in a political vacuum. We are having this conversation against the backdrop of systemic underfunding of legal aid over the past two decades. Many of the financial pressures on the self-employed bar and indeed the financial pressures on solicitors firms are caused by the current state of legal aid. The legal aid sentencing offense, punishment and offenders act in 2012. Which radically, radically reduced the scope of legal aid and was a huge blow to the legal profession and to the integrity of the legal system from which I say it has never recovered. Essentially, our system has to be funded properly. So finally, let me say this, the legal distinctions between what solicitors and barristers do have already been significantly weakened in recent decades. That process should continue, but this should happen alongside an increase in legal aid rates, the repeal of the 2012 act and a restoration of the full scope of legal aid and a commitment to fund the administration of justice properly. Thank you.(audience clapping)- Thank you, Leslie. That was a wonderful talk. We are quite tight on time, but we could have just a couple of short questions, maybe. I've got one online, which is talking very much about what you finished with. Which is that, "Without legal aid or with legal aid so strictly reduced. So we are now seeing more people trying to defend themselves in court with poor outcomes."- Unfortunately, I think the answer to that is yes and far from assistant justice, it's tying up the courts. It means that judges have to spend more time helping unrepresented litigants. And when the courts get tied up, that's less justice for everyone else. So I think short answer is yes. I think there was a question there.- Lovely.- [Audience Member 1] Do you think there'll be a danger if you merge the professions or essentially you have a fused profession where all legal work operates under the law firm model, either as a public company or an LLP, where effectively you adopt another form of inequality? Because a junior barrister takes home 85% of what they bill. A junior solicitor often bills three or four times what they're actually paid. And you have a small class of equity partners who cream lots off the top. So in you're not replacing quite a privileged profession that almost operates like a medieval guild with a very, very catalyst one that actually has that kind of almost elite catalyst cast at the center of it.- It's a valid point you make. I think the answer to that point is to have different models of partnerships, firms collectives.'Cause remember, in terms of those who were able to conduct litigation, at one stage we had, you know, properly funded law centers and so they law centers didn't necessarily adopt a, you know, private firm model. So I think we would need to be creative about the types of models that we would have in mind in terms of a fused profession. It doesn't necessarily mean that we, you know, we just have to follow the big solicitor model. I think though what is likely to happen, we're likely to have big rich firms and smaller firms and there will be a division there. And I don't know how we would get around that.- [Audience Member 2] Do you think, especially what's happening with the criminal bar, a lot of younger barristers or aspiring barristers are then going to get discouraged and maybe pursue the solicitor advocate route so that, you know, they have the benefits that you've talked about, but still get the chance to advocate in courts and, you know, be a solicitor and have the comfortability I would say, but also get the chance to, you know, sort of be a barrister?- I think, again, short answer to that, I think yes. And I think that's been happening for years. I think particularly when I came to the bar at least there were local authority grants to do the bar finals and there weren't as many student loans. What you have now, you have a system whereby, you know, students are leaving university where a significant amount of university debt. They then have to do one of the bar courses, which are very expensive. So that's debt on top of debt. And then there's one of the things I didn't have a chance to go into, it's so highly competitive now to get into chambers. So, you know, you take a chance. And not only is it really highly competitive, even if you do get into chambers, if you want to do, you know, if you want to do what I describe as progressive socially justice work, that work is extremely poorly paid. And so you worried about how you're ever going to clear that debt? And yes, a number of, you know, aspiring great minds that could be entering the bar are deciding,"Look, I can't afford this." And are going into what they consider to be more certain. And don't get me wrong, I'm not suggesting it's easy to get into solicitors profession 'cause there's a lot of competition there to improve their chances and reduce that debt.- Thank you very much. I'm sorry we're out of time now. It just remains for me to say thank you very much to Professor Leslie.- Thank you.(audience clapping)