Chair of the Bar 2023: Nick Vineall KC

Regulation of the profession is a key priority for Nick Vineall KC as he begins his year as Chair of the Bar. He’s concerned at the increase in cost – another £1m every year – and he tells me that barristers are waiting much longer for complaints to be resolved than they should be.

We met to discuss his plans just a few days before the Bar Standards Board (BSB) issued a public apology to Dinah Rose KC for publishing its response to a complaint against her without giving the barrister an opportunity to be heard. Last year’s Chair, Mark Fenhalls KC, described the BSB’s handling of the matter as ‘unacceptable and inexcusable’.

Vineall himself thinks the problem is systemic. The BSB aims to reach a decision on 80% of the complaints it receives within six months of accepting them – which seems a pretty relaxed timetable to me. However, staff hit their six-month target in only 34% of these cases last year.

Quality targets have fallen short too. For decisions that are challenged and referred to one of the BSB’s two independent reviewers, it aims at a 95% success rate. Last year, the proportion of decisions upheld by the reviewer was 83%.

I suggest, slightly tongue-in-cheek, that the answer might be to give the BSB more money. Vineall’s response is revealing.

‘When systems aren’t working properly, there are different things that can be tweaked. One is resourcing, one is the systems, and sometimes there are problems with the people or leadership.’

Who can he mean? I point out that the BSB has recently appointed a new Chair. Kathryn Stone OBE had been a board member at the BSB since 2018, the year she was appointed Parliamentary Commissioner for Standards.

‘We very much look forward to working with Kathryn,’ he tells me. ‘I know from my conversations with her that she shares the Bar Council’s concerns about the performance of the BSB in its core function. And she has very relevant experience.’

Vineall hopes the BSB will now concentrate on its key functions and avoid duplicating work done by the Bar Council. At the moment, he says, the relationship between the two bodies is ‘not working altogether satisfactorily’. Barristers are paying for the same functions to be performed by both their regulator and their representatives. ‘That doesn’t seem very sensible.’

What about the Bar Council’s relationship with the Legal Services Board (LSB), which oversees front-line regulators such as the BSB? Vineall is concerned that the board may be guilty of regulatory over-reach.

‘When [the LSB] produced their strategic plan they said that, although they weren’t an overall regulator of the legal services sector, they would like to be – and they’ve taken that into account in putting forward their plan. When Parliament has set forward a statutory regime which says what a regulator is supposed to do, that’s what it ought to do and no more.’

But who regulates the super-regulator? The LSB was created by the Legal Services Act 2007. While that legislation was going through Parliament, the Ministry of Justice – its sponsoring department – promised that it would be reviewed three years after it was set up in 2009 and every three years thereafter. The first triennial review was published in July 2012. Later that year, the government spokesman Lord Ahmad of Wimbledon told peers that the next review would be in 2015.

Those have been replaced with what are called ‘tailored reviews’ but there hasn’t been one of those for five years and Vineall is still waiting for the next one to be announced. It’s a concern he’ll be raising with the government this year.

The LSB also supervises the work of the Solicitors Regulation Authority. Vineall believes the board doesn’t fully grasp the distinction between solicitors – who deal direct with the public – and barristers, who are almost entirely a referral profession. He gives the example of continuing competence, which the board was looking at two years ago.

‘Most barristers would feel that they are under constant review in terms of their competence by the solicitors who instruct them. If you mess up a case, your solicitor is not going to come back. It seems to me that a lighter touch is well justified in a profession like the Bar where you are constantly under the appraisal of another professional person, your instructing solicitor.’

But the Bar now allows direct access by members of the public, I remind him. Not all work goes through an instructing solicitor.

The amount done on this basis is between 2% and 3%, Vineall tells me, and the Bar has more extensive professional requirements for those offering direct access.

There is a much bigger structural divide between barristers who are entitled to practise and those who have merely been called to the Bar. Of the 70,000 barristers, only 17,000 are practitioners. Unregistered barristers, as they are now called, outnumber those in practice by more than three to one. And yet it is the practising Bar that must pick up the bill when unregistered barristers face disciplinary proceedings – perhaps for including their professional qualification on a Twitter account and then publishing an offensive tweet.

There is no way of raising money from unregistered barristers, Vineall tells me. ‘They’re free to pay if they wish to but, unsurprisingly, hardly any of them do.’

Should they have been awarded the professional title in the first place?

We are now in deep waters. Calling individual students to the Bar is a matter for the Inns of Court. Each Inn is surely entitled to call people from abroad who may then return home, qualify under the rules of a foreign jurisdiction and then bring lustre to the Inn by reaching the highest levels of Bar or Bench.

Vineall is much more concerned about barristers who are never going to practise. He finds it ‘really worrying and actually upsetting that there are so many young people coming out of university, with huge student loans, who are encouraged to do the Bar [training] course’ but who have ‘poor prospects of ever securing pupillage and practising as a barrister’.

Isn’t there a more fundamental problem here? In every other profession, you don’t get the qualification until you have completed the training. Surely students should not be called to the Bar before they have successfully completed a year’s pupillage?

‘Ultimately it’s a question for the Inns to decide the stage at which they call people to the Bar,’ Vineall acknowledges. ‘But I think it is time for a fresh look at this issue and I know the Inns are looking at it. I’m sure they will approach it with an open mind.’

He clearly sees advantages in changing the system. ‘If call were deferred until the end of pupillage, it would in the long run mean that this disparity between the 70,000 barristers and the 17,000 practitioners would be reduced because we wouldn’t be calling lots of barristers every year who could not practise.’

So will the Bar Chair be encouraging the Inns to defer call?

By this stage I sense a slightly reluctant witness. He reminds me how confusing the present system is for consumers. And he gently suggests that the four Inns’ ‘fabulous education departments’ and limited resources could be better focused on training future practitioners.

We turn to other priorities. Diversity of the profession is critically important, he tells me.

‘We did some work two years ago which was reported in the Race at the Bar report. That showed that barristers – particularly Black barristers and even more particularly women Black barristers – do not fare as well as they go through the profession as their male and White counterparts.’

Understanding the reasons for this is difficult and challenging, he says. But it is not good enough to dismiss the problem as simply too difficult.

‘My message is: don’t be afraid of looking. If you’re a head of chambers, don’t be afraid of doing the sort of audit which is recommended in the Race at the Bar report.’

That involves comparing barristers’ earnings and looking at how people progress through the profession.

‘It’s only when you’ve got the data that you can begin to analyse properly whether there’s a problem and what you ought to do about it.’

Vineall himself was called to the Bar in 1988. He started in a small set of chambers, doing a mixture of civil work. That set merged into what is now 12 King’s Bench Walk, one of the leading personal injury sets. But he wanted to do more commercial cases and after 10 years he moved to his present chambers, 4 Pump Court, which also specialises in construction work.

Why should a successful barrister want to take a year out and lead the Bar?

‘It’s a great privilege. It’s a profession that has given me 30 years of real enjoyment and challenge – and I think it’s time to put something back.’

That will require him to speak up for the rule of law – and the role of lawyers.

‘I’m concerned that there has been a coarsening of public discourse, particularly in relation to lawyers, over the last six or 12 months,’ he tells me. ‘There have been some really regrettable comments made by people who ought to know better – including some lawyers who certainly ought to know better – which have suggested that barristers and solicitors can somehow be associated with the causes of their clients.’

Recalling the response to migrants crossing the Channel in small boats last year, he accepts that feelings were running high. But that didn’t justify denying people legal representation.

‘I think everybody is deeply concerned about these issues, but trying to suggest that they are the fault of lefty lawyers is simply unacceptable. As lawyers, we represent our clients to the best of our ability within the law.’

This is Vineall’s second stint on the Bar Council. He chaired the Young Bar in 1994.

‘I really enjoyed that,’ he recalls. ‘I helped introduce the first clearing house and I’ve maintained an interest in entry to the profession and the way we educate young barristers ever since.’

Because the Criminal Bar was in such a bad way last year, it looked as if there might soon not be any young criminal barristers around to educate.

Vineall is relieved that the Criminal Bar Association reached a settlement with Brandon Lewis during his seven weeks as Justice Secretary. But that had not solved the funding problems facing the criminal justice system – as we were to see a couple of weeks later when Lewis’s successor, Dominic Raab, imposed a pay cut on criminal solicitors that the Law Society feared would be a ‘fatal blow’ to defence work.

Surely lawyers needed to make economies along with everyone else?

‘In the end,’ Vineall replies, ‘an inefficient criminal justice system is incredibly costly in societal terms. If you don’t put enough money in and you don’t get people through the system quickly, you will find it is a false economy to save small amounts of money and, as a result, create much greater longer-term problems.’

Because there would not be enough judges with experience of the criminal courts?

‘You won’t get criminal judges if there aren’t enough criminal barristers and you won’t get the efficient dispatch of business if cases have to be adjourned because there is nobody available either to prosecute or defend.’

I want to end on a high note. Does he have a message for youngsters starting out or for mid-career barristers who were wondering whether they had joined the wrong profession?

‘There’s no doubt it’s tough. It’s competitive. But if you are bright and committed and prepared to work hard, it’s a wonderful profession.’