Are You Authorised?

The BSB has recently published a consultation paper on its proposals for revisions to barristers’ practising arrangements. Charles Hollander QC and Sarah Brown outline the key themes and explore the challenges ahead.

The Legal Services Act 2007 (“the Act”) introduces into the regulatory arena the principle of authorisation to practise. In terms of the Bar, this requires new procedures which build upon and extend the current practising certificate regime. The Bar Standards Board (“BSB”) has recently issued a consultation paper on its proposals for authorisation to practise arrangements.


Section 13(2) of the Act requires individuals wishing to provide reserved legal activities (exercising a right of audience, conducting litigation etc) to be authorised to do so by the relevant approved regulator.

For a transitional period, barristers who have practising certificates are deemed to be authorised, but at the end of this period, the BSB will be required to have in place measures to authorise barristers to undertake such activities. The current practising certificate regime operates effectively but the BSB believes that the authorisation requirements of the Act necessitate a strengthened approach which is more directly linked to compliance with the criteria, such as holding appropriate professional indemnity insurance cover, that must be met in order to practise as a barrister.

Under the proposed regime, the practising certificate will become an entitlement to practise. Barristers wishing to renew their practising certificate will have to complete a form, probably online, which verifies their practising address, their status and entitlement to carry out reserved legal activities and which declares the number of hours of CPD completed in the last calendar year and that adequate indemnity insurance cover has been obtained and paid for.

We believe that these proposals will benefit individual practitioners and provide greater clarity to those who use barristers’ services. Furthermore, the proposals will enable joined up administration of the BSB’s internal systems (which will further benefit members of the Bar) and promote a proportionate response to non-compliance with the practising requirements.

Barristers without full entitlements to practise

As the practising arrangements have developed over the last ten years the number of categories of barristers has increased, with each category having a different or limited entitlement to practise. This creates confusion and uncertainty, both for the profession and for members of the public.

The BSB has therefore taken the creation of an authorisation to practise regime as an opportunity to try to regularise the position. To do so, the following is proposed:

  • Practising certificates and the Barristers’ Register will be explicit about the reserved legal activities which barristers are authorised to undertake.
  • Employed barristers whose entitlements are not known will be required to provide the necessary information for the BSB to determine the level of their authorisation. Failure to do so will result in those barristers not being entitled to exercise any reserved legal activity.
  • Only those barristers who meet all the requirements for conducting litigation will be authorised to do so.

Barristers without practising rights who provide legal services

Barristers who are not entitled to practise may not hold themselves out as barristers if they supply legal services. This rule will remain but will be strengthened and clarified so as to protect the interests of the public who deal with them without imposing disproportionate restrictions on the barristers concerned:

  • Those barristers who are not entitled to practise but who supply legal services to the public and are not in a regulated firm will be required, if they have reason to believe that the client knows that they are a barrister, to provide a disclaimer to the effect that they may not be trained to the same level as an authorised barrister, they are not required to have insurance, they have no right to undertake reserved legal activities and they are not bound by the same standards of conduct as authorised barristers.
  • Those barristers who are not entitled to practise but who are employed by a legal services firm that is regulated by another approved regulator and supply legal services to clients of that firm will not be permitted to hold themselves out as barristers when supplying legal services.
  • Those barristers not entitled to practise but who supply legal services to their employer only will not be permitted to hold themselves out as barristers when supplying legal services but will be permitted to refer to themselves as a barrister (with some degree of qualifying phrase such as “a barrister who is not permitted to practise”) when describing their qualifications to their employer or potential employer.

These measures are intended to provide greater certainty for members of the public about what their barrister can and cannot do.
The proposed change in the regulatory approach to dealing with barristers without full entitlements to practise will require transitional arrangements to ensure a smooth shift from the old regime to the new. The BSB will develop such arrangements once the outcomes of the consultation are known.

The Barristers’ Register

The Register, which the BSB introduced in October 2009, will provide the public face for the new authorisation to practise regime and will reflect individual barristers’ practising entitlements. It will also provide a useful medium for explaining and publicising the final authorisation regime to the profession and the public.

Challenges to be faced

Education and publicity will be critical to ensure that any new authorisation to practise regime is implemented successfully. The consultation paper has been sent to all chambers as well as all employed and non-practising barristers who are registered with the Bar Council. The BSB will also be contacting the main consumer bodies as well as a number of representative bodies for users of barristers’ services. Once the scheme is finalised a further round of education and publicity will be undertaken. Ideas on how that can best be achieved would be most welcome in responses to the consultation paper.

The BSB’s internal systems will need to be developed and enhanced to enable a more joined up approach to authorisation to practise. Accuracy of information will be vital as will a robust and dependable IT framework.

The new regime

The 2007 Act establishes a new regime for the provision and regulation of legal services. The Act identifies six types of reserved legal activities:  the exercise of a right of audience; the conduct of litigation;  reserved instrument activities; probate activities; notarial activities; and  the administration of oaths.  Under the Act, the BSB is able to authorise barristers to undertake reserved legal activities, with the exception of notarial activities.  In addition to regulating reserved legal activities, the BSB also regulates practising barristers who undertake non-reserved legal activities (including giving oral and written legal advice). It also regulates, to a limited extent, barristers who are not considered to be “practising” but none the less give legal advice.

Next steps

The deadline for consultation is 1 June 2010. A copy of the paper “Development of authorisation to practise arrangements – Consultation Paper” can be found in the consultation section of the BSB website at www.barstandardsboard.org.uk.  The proposed changes to the practising arrangements for barristers will impact to varying degrees on the large majority of the Bar. The BSB is therefore keen to secure a wide range of responses to the proposals set out in this paper.  We would be interested to know if our proposals are expected to have an adverse impact on any particular sector of clients or barristers. It is proposed that the new authorisation to practise regime will be introduced towards the end of 2011 so that it is in place for renewals at the start of 2012.

Charles Hollander QC and Sarah Brown are Chair and Vice-chair of the BSB’s Standards Committee respectively as well as members of the Board itself. They are joint Chairs of the BSB’s review of the Bar’s Code of Conduct.

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