Geoffrey Vos QC outlines his ideas on how the Bar Council can best safeguard the interests of its members in the future

The Bar Council was last revamped in 2001 following a major report by Lord Alexander QC, who recommended that the structures be reviewed five years on. Accordingly, Sir Paul Kennedy was appointed last year to chair a working group with that objective. He reported in May 2007.

In many respects, Kennedy found the Bar Council to be working well. The problem is always how to make sure the organisation is truly representative of its membership. Barristers, like most other professionals, are far too busy to spend much time worrying about their professional body – until, that is, something goes wrong. At that point, they become concerned about their representation. The answer, of course, is to make sure the professional body breaks through that wall of indifference and communicates effectively with its membership in good times and bad; and that it effectively represents the profession in every appropriate area – with government, in the press and with other professions, to name but a few.

A further problem for the Bar Council is the need to fully adapt to its relatively new role of representing employed and self-employed barristers. We now have some 3,000 employed barristers (about 20% of the constituency). The Bar Council will only become truly representative of its membership when employed barristers are adequately represented throughout the Bar Council's structures. This requirement constituted a thread running through the whole of the Kennedy report.

Specialist Bar Associations

One of the major changes observed in the last decade has been the increasing importance of the Specialist Bar Associations (SBAs). Many more barristers are now specialists than 20 years ago and the SBAs play a far larger role in the professional lives of the average barrister. They provide seminar programmes in fields of interest to their members, allowing them to obtain relevant continuing professional development qualifications. They run an ever-larger number of conferences that are ever better attended. Almost every barrister is now a member of one or more SBA and many of them carry significant influence with their membership and beyond.

Kennedy recognised this development. He recommended that the SBAs needed greater representation on the Bar Council itself. Rather than increase the size of an already large Council (up to 118 members), he suggested decreasing the directly elected members. Of course, SBA members are elected by the members of the SBA, so this is no affront to democracy.

Election of Bar Council members

Kennedy looked carefully at the way in which the single transferable vote (STV) election system had operated. He concluded that it should be replaced for directly elected members of the Bar Council (but not officers elected by the Bar Council itself) by a 'first past the post' (FPP) system.

This is controversial and has yet to be debated by the Bar Council; but the reasons for it were entirely pragmatic. It appeared that, in past elections, good independent candidates had been displaced in the later rounds of voting, despite having received very nearly enough votes to be elected on the first round. Slated candidates of the large SBAs pick up more votes in the second and subsequent rounds, and sweep past the independent candidates, who are only supported with first votes by those that actually know them. Kennedy thought that slates should be discouraged, though he pragmatically acknowledged that they could not effectively be banned.

The special circumstances that might make FPP fairer and more effective for directly elected Bar Council members seem to me to be:

(a) the size of the special interest constituencies – i.e. the criminal Bar comprising some 4,500 people or 40% of the self-employed electorate, and the Family Bar, comprising some 1,500 or 13% of that electorate. This has the effect of allowing criminal or family candidates to pick up second votes in such large numbers that they can overhaul any independent candidate from a smaller field or circuit; and

(b) the fact that minority candidates – i.e. those from a small specialist field or from a minority ethnic group – are likely to be known to only a small constituency. This is the mirror image of the first point. The overall point is that, even accepting that the STV will work more fairly in an ordinary balanced electorate, where the constituency is broken down into large chunks, those large chunks will always tend to do better, at the expense of minorities, once second and third STVs are taken into account.

Bar Council officers

There is also another debate that has been sparked by Kennedy's report. He highlighted the importance of the Bar Council's dealings with Government and the role that the chairman's office plays in such initiatives. That office has, for example, initiated active, high-profile working groups in recent years, including the Clementi Group handling the Bar's response to the Legal Services Bill, the Carter Group and (most recently) the 'OCOF' or 'one case, one fee' group dealing with the Bar's response to the Legal Services Commission's proposal to introduce best-value tendering into criminal publicly-funded work.

The question is whether a chairman holding office for one year can deliver the continuity of leadership that the Bar now requires. The problem, however, is that it remains hard to persuade people to put themselves forward for election as chairman (and vice-chairman the year before) because of the consequences to the individual's practice.

In years to come, we may need to consider a non-executive chairman, who holds office for two or three years and is expected to work only about two days per week. That person would obviously need to be supported by more elected officers but might be able to provide more policy cohesion. He or she might also be better able to deliver forward-looking policies, for the long-term benefit of the profession, than can be done during a one-year term.

The future of the Bar Council

The Bar Council must be outward-looking and progressive. It has always been a well-regarded institution commanding public respect and, above all, it must make sure it continues to do so.

Much introspection has been required in the past months as the Bar Council's ring-fenced regulatory body, the Bar Standards Board (BSB), has been established and nurtured.

Now the BSB is successfully up and running, the Bar Council must make sure it continually re-evaluates its success in representing and promoting its members, in dealing with the issues that really affect them and in making sure that its interests are appropriately aligned with the public interest. One thing is for sure: the Bar Council will never be successful in promoting practices that no longer accord with the public interest.

But there is a careful balance to be drawn in the way we manage ourselves. Externally, we need to be sufficiently effective to ensure that the reputation and profile of the profession are maintained and enhanced.

Internally, we need to be astute to ensure that junior and senior, employed and self-employed, criminal, family, civil, chancery and commercial barristers are attracted to participate in the Bar Council's affairs. Kennedy was a useful step along the way in showing us how to ensure that we get that balance right.

Geoffrey Vos QC is chairman of the Bar Council.