Appointments to the BSB panel normally come about when an existing member approaches an acquaintance or colleague and suggests they apply. This is true in my case. I’m very grateful for the opportunity as it is fascinating work. It’s stimulating to be involved in regulating one’s own industry, and to be involved in serious matters affecting not only the barristers in question but also the public’s perception of the Bar. The work is rightly pro bono – the majority of barristers are upstanding practitioners, with a very small number operating outside of acceptable standards. To impose the sizeable costs of prosecuting this small number on all members of the Bar would be unfair. As far as the award goes – anyone could have been nominated, it just happened to be me on this occasion. I can think of several colleagues more deserving than I.Disciplinary hearings seem to be “closed shop” affairs – why is this? And what do your colleagues think about your involvement in prosecuting “your own”?
The hearings do take place behind closed doors, yes, but they are not “closed shop” – all tribunals are public and members of the public are entitled to attend. Tribunals are also public in the sense that the panel always includes lay members as well as barristers. I think part of the perception stems from a lack of interest on the part of the media – journalists do turn up from time to time, but this seems to be on a fairly random basis and they almost always miss the more interesting stuff. I am quite surprised when I have heard people (albeit light-heartedly) suggest disloyalty. I think it is essential that barristers are involved in prosecuting other barristers – it is a fact that there are unscrupulous and/or less than capable practitioners out there, we can’t avoid it, so it is essential that there is robust and informed regulation and discipline.Has there been an increase in spurious claims against barristers in the light of the opening up of the Bar to direct public access (DPA)?
Firstly, the BSB has in place a robust filtration process to ensure that claims with merit are heard, and those with no substance do not get through. There have been more cases where barristers are accused by public access clients of misappropriating funds or overbilling, and this is only likely to increase as more practitioners open themselves up to direct contact with clients and therefore direct contact with client money. I am personally rather cautious, as a result, when it comes to taking on direct cases as there is enormous potential for trouble. Barristers engaging in DPA need to be very careful and analytical in considering whether to take on such work. Don’t misunderstand me, I believe DPA is a good thing, but parameters needs to be established between client and counsel at the outset, with a terms of care letter setting out in great detail what the barrister can and cannot do.
Looking at how other professions are regulated, particularly (in light of recent and current developments) the financial services industry, do you think the FSA could or should have done things differently before, during and after the crisis?
I have tended to think that UK financial services regulation has always been appropriate to the way we do things in the UK. Broadly, the way the FSA handles its duties is the right way. I don’t have much truck with the suggestion that the financial crisis was the fault of the FSA or any other regulator. Frankly, all parties involved in the industry, from the Government down, were in some way responsible. I would be very surprised if the entities that replace the FSA act in a notably different way to how the predecessor conducted itself. Increased scrutiny, perhaps, will have an impact but this is no bad thing.
You are involved in health and safety litigation and investigations – the Prime Minister has publicly stated that he wishes to remove the “Health & Safety regime”. Do you think HSE considerations are a hindrance to economic recovery?
No. I have trouble understanding what the Prime Minister means by the “Health and Safety regime” – if he means the law pertaining to health and safety, then certainly not. It saves lives and protects people from unnecessary injury and loss of livelihood. If, however, he means ill-informed gossip about cancelled school trips or a policeman refusing to save a drowning child, then yes, people need to be better informed. A number of rail and tube strikes blamed on H&S issues are nothing of the sort. The issue is used as a political football, so if, as I suspect, the Government’s stance is about cheap political point scoring, then I think it is deeply misguided. The Prime Minister may genuinely want to change the law but I cannot think why.
Luke Blackburn was interviewed by Matthew Lawson and Stephen Turvey of LPA Legal Recruitment