English Bar fights for last vestige of self-regulation

Geoffrey Vos QC, the new Chairman of the English Bar Council gave his inaugural address on 11 December 2006, lamenting the imminent demise under the Legal Services Bill, of the last vestiges of self-regulation in England, a hoped-for statutory entitlement in the independent regulator in its discretion to delegate matters back to the traditional disciplinary bodies like the Bar Council for investigation. The Legal Profession Act, 2004 (Vic.) contains just such a power, described as a right to “refer” investigations to the Law Institute of Victoria, or the Victorian Bar Ethics Committee, and Victoria Marles, the Legal Services Commissioner, has been availing herself the discretion with gusto.  The history of the demise of self-regulation in England is well told here by Mark Davies. The Clementi Report had a lot to do with it. Vos’s speech included the following:

‘The second reading of the Legal Services Bill took place in the Lords last week.  The Bill will make significant changes to the legal profession generally and the Bar in particular. 

During the Bill’s pre-legislative scrutiny by the joint committee of both Houses, we campaigned for three important changes to the Bill.  All were approved by joint committee, but none was accepted by Government.

We sought the inclusion of a power allowing the Office for Legal Complaints to delegate the handling of service complaints to the Front Line Regulator. 

We are not asking for delegation to take place, only that there should be a statutory power allowing it if the Legal Services Board thinks it appropriate. 

There are two main arguments:-

1. Separate treatment of conduct and service complaints will be duplicative of cost and time.

2. When the Bar’s complaints handling has consistently been commended, it is pointless to transfer complaints handling to an Office of Legal Complaints with paid staff, when senior barristers provide millions of pounds worth of time gratuitously to the BSB’s Conduct Committee.  The Government is throwing away that value at a stroke.

It is notable that Sir George Bain has recently reported in Northern Ireland, and has rejected much of the Clementi model, because of the high standard of complaints handling by the professions over there.  There is no reason why our profession, which has a similarly good complaints handling record, should be treated less favourably than the Northern Irish professions.

We will also want to ensure that Alternative Business Structures, which are likely to become a reality, are regulated in such a way as to ensure that the standing of the English legal profession is not diminished here or overseas.  They may well be regarded, particularly by the employed Bar, as a business opportunity, waiting to be exploited.

But although the Legal Services Bill will take much of our time in the coming year, it forms only the background to the regulatory issues facing the Bar Council.

Sir David Clementi recommended that there should be a single professional body with a representative arm and a ring-fenced regulatory arm.  But there is much misunderstanding of what regulation really entails.

Regulation, I believe, encompasses all decisions made by a profession’s governing body that concern a person’s ability to practice, and the ways in which he/she is permitted to practice.  Thus, regulatory decisions either govern the rules of entry to, training for, and practice, at the Bar, or relate to an individual’s qualification for practice, professional conduct or discipline.  The four main areas of regulation are, therefore, making the rules, deciding who is qualified to practice, prosecuting misconduct, and monitoring compliance.

It is decisions in these areas that need to be made by ring-fenced bodies comprising members who have no say in the representative activities of this Council.

But it would be senseless and dogmatic to duplicate costs in regulating what is a very small profession by requiring complete separation. And the Bill does not require it. Finance, diversity and record keeping are examples of areas where the Bar Council and the Bar Standards Board can and should share joint services to save cost to the profession and thence to the public who use our services.

The culture of the new Bar Standards Board is different to that of the old Bar Council.  This is right and was entirely to be expected.  We must make sure in the coming year that we develop and maintain a harmonious relationship between the Bar Council and the BSB. 

It is, in my view, simply wrong to say that our independence depends on our being either self-employed or on the fact that we are mostly a referral profession.  Our independence stands and falls by the ethics of which we are justly proud.  A self confident profession which delivers high quality work, and high standards of ethics and training, will always be in demand.  I am, therefore, less concerned about the business structures in which barristers might, in future times, be allowed (if they wished) to practice, provided we find ways of preserving the two central bastions of our profession: our ethical and training base, and the availability to the public of a pool of independent advocates willing to take anyone’s case without regard for the unpopularity of the cause the client might espouse.”

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