‘Right-touch’ regulation

If it ain’t broke, don’t fix it: how the Bar’s current representative/regulatory model works and why it’s essential to preserve


As promised in last month’s column, I turn my attention this month to the regulation of the Bar. Having hopefully consigned to the waste bin of history the question ‘What has the Bar Council ever done for me?’ I now aim to put to the sword the confusion in some minds of the difference between the Bar Council and Bar Standards Board (BSB), and our respective roles and functions. First, a little history. Until 2007, the Bar had been self-regulating but the Legal Services Act 2007 (LSA 2007) changed all that. Following a report from the Office of Fair Trading in 2001 on competition in the professions, in July 2003 Sir David Clementi (Tony Blair’s go-to reviewer of all things) was asked by the then Labour government to conduct a review of the regulatory framework for legal services in England and Wales. Sir David’s report was published in December 2004. This led to the LSA 2007 which became law in October 2007 and saw the setting up of the Legal Services Board (LSB) which provides oversight regulation of the Bar, solicitors, chartered legal executives, licensed conveyancers, patent attorneys, trade mark attorneys, costs lawyers, notaries and chartered accountants.

During the course of the review, a number of possible models for regulation were considered but, after considerable input from the Bar Council, what became known as the ‘B+ model’ for regulation was accepted by Parliament. This created the concept of an ‘approved regulator’ which could delegate its functions.

Prior to the LSA 2007, the Bar Council was responsible for representative and regulatory functions. Following its implementation, the Bar Council became the approved regulator and delegated its regulatory functions (as it is obliged to do) to the BSB which had been set up in anticipation. Although the BSB is part of the Bar Council and shares our services, it is to all intents and purposes an independent body with its own board. It sets its own budget, subject to representations from the Bar Council, and makes its own decisions. In last month’s column I explained the make-up of the Bar Council: in essence elected members and members from the Circuits, specialist Bar associations and Inns. The BSB is made up of a mix of barrister members (six) and lay members (eight) and must have a lay member majority. The Chair (currently Baroness Tessa Blackstone) is always a lay person and the Vice-Chair (currently Naomi Ellenbogen QC) is a barrister.

Pursuant to s 30 of LSA 2007, the Bar Council, in exercising its representative functions, must not do anything that prejudices the exercise of the BSB’s regulatory functions and the BSB’s decisions must, so far as reasonably practicable, be taken independently from decisions relating to the exercise of the Bar Council’s representative functions. The LSB’s recent consultation on the proposed Internal Governance Rules seeks to replace the ‘prejudice condition’ with one that does not ‘influence’ the regulatory function. For obvious reasons, the Bar Council is wholly opposed.

What all this comes down to, in simple terms, is that the BSB is responsible for the regulation of the profession. It is the BSB that produces the Code of Conduct and it is the BSB that decides whether to prosecute members of the Bar who have not complied with it. The Bar Council represents members of the Bar, seeks to promote the Bar, responds to consultations, lobbies on the profession’s behalf and generally seeks to make the lives of barristers better. The Bar Council also works tirelessly in the public interest to improve access to justice and maintain the rule of law (objectives shared with the BSB).

Although members of the Bar may not always agree with everything the BSB does, it is my opinion that we are currently very fortunate in having a regulator that has input from members of the profession. May I encourage any of you who are not members of the Bar Council to think about putting your hats in the ring when the BSB seeks new barrister members for its board. It is important that good people serve on the board and ensure that the real world experience of the Bar is heard and understood by the BSB. It is also important that the Bar Council is able to make representations to the BSB, seek to challenge it and ensure that it is always aware that whatever expenditure it incurs is paid for largely from the pockets of members of the Bar.

I am not against good quality, proportionate regulation. I am, though, firmly against regulation for regulation’s sake and will do all that I can during my term as Chair of the Bar to ensure that we do not see ‘regulatory creep’. I will also do all that I can to seek to ensure that the principles enshrined in the LSA 2007 are not amended through the back door by the LSB amending the rules that govern our relationship with the BSB. And I will fight tooth and nail to prevent any moves towards an uber regulator. In my view, that will only lead to an increase in cost to the Bar and undermine our independence, with no benefit to the consumer.

Regulation is here to stay, but it must be ‘right-touch’ regulation with the ability retained for those who practise at the Bar to make proper and considered submissions to our regulator. That is what currently happens and it should continue, in the public interest as well as the consumer and profession’s interest.

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Richard Atkins QC

Richard Atkins QC, Chair of the Bar