The barristers’ representative body has expressed ‘serious concerns’ over successive increases to the Bar Standards Board’s budget and regulatory mission-creep. In its response to the regulator’s draft five-year strategy, the Bar Council also criticises ‘generalised statements’ about unethical conduct.
On the long-running controversy over the regulation of unregistered barristers who never acquired the right to practise, the council states ‘there is unfairness…in that practising barristers bear the cost’. It suggested ‘alterative funding’ such as charging unregistered barristers an annual fee and ‘reorganising bar training and qualification’ so fewer fall into the category of barristers who have never had the right to practise.
Overall, the council said: ‘We have serious concerns about successive increases to the BSB’s budget for mainly recurring costs. This underscores the need for the BSB to prioritise delivering its key regulatory activities over new projects less critical to the discharge of its regulatory functions.’
The BSB’s assertion in January that barristers can let their ‘zeal to advocate a client’s interests to embrace tactics which are ethically questionable’ also comes under fire. The council said: ‘We are not aware of specific instances where this has happened. The BSB needs to cite specific evidence of such unethical conduct by barristers (rather than making generalised statements which could apply to legal professionals as a whole) before proposing any targeted change.’
A suggestion to liaise with the Solicitors Regulation Authority in its research into the ethical responsibilities of in-house solicitors was also suggested ‘in order to give specific guidance about how the core duties and other code requirements should be met, consistent with any SRA guidance’.
The council said ‘more transparency’ in the regulator’s progress in addressing the issues and recommendations in the Fieldfisher report into the regulator ‘would be helpful’. It added: ‘The BSB has said that it plans to expand its programme of activities. We think that it must first meet the targets set by the revised balanced scorecards and implement the other Fieldfisher Report recommendations which relate to its core regulatory function of investigation.’
Stephen Kenny KC, chair of the Bar Council’s regulation panel, urged the BSB to ‘focus its resources on its key regulatory activities’. He said: ‘The Bar Council has serious concerns about recent successive, year-on-year increases to the Bar Standards Board’s budget, well above prevailing rates of inflation. The BSB should prioritise the delivery of its key regulatory activities, and not venture into new projects, at ever-increasing cost to the profession. Some of the BSB’s key performance indicators remain unmet, especially in important areas such as investigations and authorisations.
‘It must implement the Fieldfisher Report recommendations aimed at improving its investigations process. We also want the BSB to consider its role in regulating unregistered barristers who never acquire the right to practise. At present, practising barristers must pay for this regulation, which is an unfair burden.’
