Inns of Court: Chambers under spotlight
The Bar Council has warned the Bar Standards Board (BSB) not to go too far in its oversight of chambers and said its idea of encouraging smaller sets to merge is “inappropriate”.
It roundly rejected a further suggestion that the BSB could publish its assessments of chambers on the grounds it would leave them “without any members who are willing to take on senior leadership roles, for fear of the associated adverse publicity”.
The Bar Council was responding to a consultation issued by the BSB last October, looking at how to clarify the requirements the regulator imposed on self-employed barristers that, in practice, were fulfilled through chambers
The consultation described chambers as “vital intermediaries, and potential allies for the Bar Standards Board, in achieving regulatory objectives”.
The Bar Council stressed that the BSB had no power to regulate chambers under the Legal Services Act 2007 and to try and do so “would be to act ultra vires”.
The BSB floated the idea in its consultation that one way of boosting the capacity of smaller chambers to meet regulatory obligations could be “voluntary consolidation” between them.
The Bar Council described as “alarming” use of the word ‘currently’ by the BSB in saying that it would not “currently adopt an active policy of consolidation”. This indicated that an active policy “may be considered at another time”.
It was “inappropriate for the regulator to pursue a policy of consolidation of chambers”, regardless of whether it was encouraging it or taking a more active approach to the issue, the response said.
“Dictating the business structures of chambers, which are not regulated as entities, is clearly outside the scope of the BSB’s powers and remit.”
The Bar Council said it was also inappropriate that “regulation should place such a burden on barristers” that consolidation had to be considered to facilitate regulatory compliance.
“It cannot be right that the impact of any regulatory requirements are such that chambers are forced to consider whether they can continue to operate as currently constituted or not. This suggests that the BSB has set the minimum standards too high.”
The Bar Council said it did not agree that the BSB should make public “any assessments of individual chambers, or individual members”, apart from enforcement-related publications such as disciplinary tribunal decisions.
“The BSB would have to take its own advice as to whether any such processes or actions would leave it open to judicial review.”
There was also “a real risk that threats of publication of anything less than genuine enforcement actions under part 5 of the BSB’s Handbook will simply result in chambers being left without any members who are willing to take on senior leadership roles, for fear of the associated adverse publicity”.
The BSB proposed in the consultation a “parallel sites” model on guidance, with the regulator’s website setting out regulatory requirements and associated guidance involving chambers, and the Bar Council providing further guidance.
The Bar Council responded by saying that some recent BSB guidance “whilst said to be guidance, did not provide practical assistance” to barristers.
For example, the ‘religion and belief toolkit’ had “no reference to some religions, no reference to belief, no guidance on how to manage conflicting beliefs in the workplace, and no clarity over what role chambers has to play”.
Meanwhile, the BSB’s ‘anti-racist statement’ provided “no guidance on what training on this topic needs to cover”.
In both these cases, the Bar Council said it had to provide “support and practice guidance” to barristers on complying with their obligations.
The Bar Council said it would not support the framing of outcomes for chambers. Further responsibilities could add “substantial additional cost”, some chambers could “struggle to meet the outcomes” and barristers would be discouraged from taking on unpaid management roles.
The Bar Council agreed with the BSB that bringing back a quality mark like BarMark would be a bad idea.
“There is no evidence that the BarMark certification added value or assisted the public in any particular manner, nor that any substitute kitemark scheme would do so now.”
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