Mitchell: Process too slow
Members of the Bar Standards Board (BSB) clashed with senior staff last week over how to deal with the large number of foreign lawyers seeking to be called in England and Wales but who do not intend to practise here.
While several members of the main board, led by vice-chair Andrew Mitchell KC, called for changes to the process so that other applications could be prioritised, staff said policy could not be altered so easily.
We have reported for some months on pressure on the regulator’s authorisation team to deal with a surge of applications for admission to the Bar as a transferring qualified lawyer (TQL), mainly from the Indian sub-continent, particularly Pakistan and Bangladesh.
The team also deals with a host of other applications, including for waivers and exemptions.
The latest performance report before the BSB’s main board last week showed that this team continued to be an outlier in a general picture of operational improvement.
The authorisations team cleared more applications in the first three months of 2024 compared to the previous quarter – with a taskforce set up to deal with TQL applications now up and running, freeing up other staff – but new applications continued to exceed closures and the caseload grew to 873 by the end of March. More than half of new applications were from TQLs.
In the quarter, the team determined 38% of applications within six weeks, against a target of 75%, 50% within eight weeks (target 80%) and 59% within 12 weeks (target 98%).
The taskforce is made up of one senior officer and four other officers, and the BSB is recruiting a regulatory lawyer on a fixed-term contract to support them.
In the year to 31 March, the report said, there had also been “a marked shift” in the complexity of TQL applications, meaning that – alongside higher volumes of pupillage and other authorisations work – the number of applications the team completed overall had fallen.
BSB director general Mark Neale told the board that, “for most part, [TQLs] are not seeking to come and practise in England and Wales but want to be called to the Bar for marketing purposes in their own jurisdictions”.
Several members expressed concerns about the impact of TQL applications on the other work of the authorisations team that Mr Mitchell described as “more important”.
It was “all too slow and bureaucratic”, he complained, and there were calls for the BSB to prioritise domestic authorisation issues and also require TQLs to provide evidence of an intention to practise here.
However, Saima Hirji, interim director of regulatory operations, said the BSB rules did not require TQL applicants to prove such an intention and that a full process of policy development – a policy options paper, equality impact assessment and a 12-week public consultation – would be required before this could be done.
It was “not a quick fix”, she stressed and Mr Neale said it could take up to a year to go through these stages.
But Mr Mitchell disagreed that a rule change was needed, saying the board was “entitled to take operational decisions at our discretion”.
Ms Hirji said that, even if applications included a box to tick for those who intended to practise here, everyone would do so. There would then need to be guidance developed on what evidence would be needed.
Another suggestion from the board was to pause applications already received and/or tell prospective applicants that they would not be actively processed for the time being.
Mr Neale said the executive would “take it away and see what we can do as quickly as possible”. He added: “I do understand the frustration.”
The BSB is currently undertaking a review of authorisations function and TQLs is part of that as well.
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