Deech: a system without prescribed hours assumes all barristers are conscientious
The minimum number of continuing professional development (CPD) hours barristers have to spend each year will double to 24, if reforms adopted yesterday by the Bar Standards Board (BSB) receive a green light from the profession.
But the new regime could leave the BSB with a shortfall of more than £200,000 if a parallel proposal to scrap the system of approving CPD providers goes ahead. Currently accreditation income from around 600 providers exceeds the cost of running CPD, which was £223,500 in 2010.
In an early sign that the new scheme could prove controversial, one BSB board member branded it “arbitrary” at the board’s monthly meeting.
The move is the latest in a series of CPD reforms across the professions, after ILEX Professional Standards substantially tightened up its rules, and the Solicitors Regulation Authority launched a review of solicitors’ CPD.
Under the BSB’s new regime, 12 of the 24 CPD hours will be “verifiable” – requiring some sort of documentary proof – and the remainder “non-verifiable” private study. Barristers will keep a record of CPD activities, including an explanation of how they were relevant to their practice.
They will submit an online declaration of compliance as part of their application for renewal of their practising certificate, although failure to do so will not mean the certificate is automatically refused. There will be no waivers.
A key feature of the new CPD scheme, which was devised by Derek Wood QC, chairman of the CPD working group, is that it is less prescriptive and more outcomes focused. All but a short list of non-approved activities will be allowed if they contribute to the objectives of CPD.
Mr Wood acknowledged that the regime was “prepared to place more trust in the honesty and integrity of barristers and be less suspicious”.
He also admitted there were “cost implications” in scrapping the existing demand for four hours of CPD by accredited suppliers. The group report suggested the BSB replace lost revenue by creating a website for commercial providers to advertise CPD events.
Mr Wood said the present 12-hour annual CPD demand is “not really sustainable in the present environment. We don’t think the public would wear it”. He revealed he had initially pressed for 36 hours but was “beaten down” by colleagues.
But he conceded that the choice of 24 hours was a “judgement” and something that “feels right”.
Matthew Nicklin, a barrister board member, described the figure as “arbitrary” and one that “leads to unintended complacency”.
He argued that instead of prescribing minimum hours, the new regime should “start from the position of what you are trying to achieve” from CPD and attempt to assess the development needs of individual barristers.
“The attraction of having hours is that it provides something that can be monitored easily”, but it failed to “delve into what we ought to be looking at as to what CPD is doing for [each] barrister and for the public”, he said.
He pointed out that the Institute of Chartered Accountants and the New Zealand Bar Association both operate a CPD system that is not hours based.
Although some board members expressed sympathy, none agreed with Mr Nicklin.
BSB chairman Baroness Ruth Deech said a system without prescribed hours “assumes all barristers are conscientious”, whereas the BSB needs “to reassure the outside world” that it can regulate “those barristers who grudgingly do the minimum”.
Simon Monty QC said an hour-based system was “simple and workable” and less likely to produce a “nightmare” of disputes between the BSB and barristers over whether they have done sufficient CPD.
Charles Hollander QC said the new system “has got to be simple for the regulator and simple for the barrister”.
Dr John Carrier, who represented the BSB’s board on the CPD working party, said the new regime offered “simplicity” and would “give barristers reason to take CPD more seriously”.
The Wood report was adopted subject to consultation. It will be sent out to the profession for comments next month. If approved by the Legal Services Board it will come into effect on 1 January 2013.
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