Why the very foundation of the CBA management argument for a No Vote, is based on a false premise

I have sat and read the various contributions on both sides for the last few days, and not added anything of my own. I have done this mainly because those who have blogged for a Yes Vote, (and I have already voted Yes) expressed the issues far better than I could.

There is one thing that I have to comment upon though, because it is something I know a little bit about, (See Bungblogs passim, ad nauseam) and because the secretary of the CBA Richard Bentwood, has used it as the cornerstone of the argument for a No Vote.

It is just plain wrong. Here’s a link to Richard’s blogpost, followed by the first two paragraphs.


Richard begins his blog thus:

“The real threat to the survival of the Bar comes not from two tier contracts, nor from the current fee cuts to solicitors but the risk that for whatever reason, solicitors feel compelled to keep more work in house and stop instructing the Bar. For reasons that I set out below, I consider that most of these instructions would not go to employed in house counsel/HCAs but to consultants who pay a referral fee to receive such work. The Bar, which cannot pay referral fees, will forever be the loser in such a competition. We risk moving towards a situation where clients are appointed advocates not by reason of merit, but by reason of financial interest. This position can only be changed through engaging with Government to put in force a set of regulations prohibiting this, or possibly a common code of conduct for those exercising higher rights of audience outlawing it. This would level the playing field and allow competition for work to be on merit alone.

Government is currently engaging on these issues. Issues which if addressed, could ensure the long term survival of the Bar. The proposed action would put an end to such engagement. That, in short, is why I do not believe now is the right time to move to action.”

There is absolutely no need to “engage with government,” on this, and it is quite wrong to say that “this position can only be changed by doing so.”

I am assuming we would all accept that if the instructing solicitor chose the best available advocate to brief in any case, Bar, HCA or in-house, there could be no complaint. The lay client’s interests will always be paramount.

If the criterion of choice for the instructing solicitor remains “quality” rather than “cheapest” then there can be no complaint. This is crucial to what follows.

The last Labour government, shortly before leaving office in May 2010, passed The Bribery Act.

That Act, for the reasons I shall explain below, makes it a criminal offence for a solicitor to brief an advocate on the basis that he/she is the cheapest, rather then the best available, – or for an advocate to offer to take the brief for a lower price purely to get the work.

It has been the law for the last four years, since the act came into force, but has been paid scant if any attention by the investigating authorities.

According to Section 1 (paraphrased) a person is guilty of an offence if they offer promise or give, a financial or other advantage, intending to induce another person to perform improperly, a function or activity, or to reward a person for such improper performance.

Section 2 is effectively the same but in reverse, and catches the solicitor who invites the payment.

Section 3 defines the relevant function or activity. It has to conform with one or more of three conditions.

  1. The person performing it is expected to do so in good faith. (i.e. the instructing solicitor)
  2. The person performing it is expected to do so impartially
  3. The person performing the function is in a position of trust by reason of performing it.

The subsection specifically provides that the function in question includes activity within a trade or profession.

Section 4 defines that which is an improper performance of a relevant function.

In particular, if it is performed “in breach of a relevant expectation.”

It continues i.e. “any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the position of trust [mentioned in C above]

Section 5 defines “relevant expectation.” Very simple, “what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.”

Let’s just take that backwards.

The lay client would (reasonably) expect that the solicitor acting for him would choose the best available advocate to present his case in court. He would not expect the solicitor to choose his advocate on the basis of which advocate has offered the biggest Bung. (Hence Bungblog).

If the solicitor solicits a kickback, or the advocate offers one, either or both commits an offence.

You don’t need to sit down with some nameless civil servant in Petty France to “engage” on this. It was done and dusted and passed into law four years ago.

But it doesn’t end there.

Section 7 creates the little known offence of “Failing to Prevent Bribery.” Accordingly, a senior or managing partner of a firm of solicitors will be liable for the activities of one of his minions, unless he can demonstrate that the firm had “Adequate procedures” in place to prevent it.

Section 9 provided for the issuing of guidance by the MoJ as to just what adequate procedures might be, but they are not tightly defined.

Effectively, if a connected person has secured business by means of an offence under section 1 or 2, the onus is on the company to show that it had sufficient monitoring or compliance procedures in place to prevent it, and that the bribery in question could not have been prevented.

This has been the law for the last four years.

Richard Bentwood suggests that “Action” would defeat attempts by the CBA to negotiate a regulatory regime that would prevent abuses.

I have news for him.

It’s already there and there is nothing more the MoJ can or could do. Any attempt at enforcement should be directed towards the relevant prosecuting authorities, who are notoriously unwilling to act, but it is THEIR province, NOT that of the MoJ.

Commercial businesses have spent fortunes on compliance programmes for the last four years, because they understand this. Solicitors have not, probably because it never occurred to them.

What they should be doing is keeping accurate records of all work briefed out, the amount of “commission” retained, others who were available, and the reason for retaining the advocate eventually instructed. It sounds ludicrous, but that is the law.

Those who have lost out on the award of work may know where the bodies are buried, and given the right impetus, might actually get around to making complaints.

Its up to them.

We do not need to engage with the MoJ to achieve this, so let’s stop running the entire No campaign on a false premise.

James Vine


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