The courts, advocacy, and the rule of law continue to be recurring features of my life – from the day I was called to the Bar in the summer of 1967, throughout a career of lecturing in law at Oxford University, and right up to 31 December this year when I step down as Chair of the Bar’s regulator. These past six years of my tenure at the Bar Standards Board (BSB) have been exciting, challenging, and rewarding; there has never been a dull moment.
At times, the role of the BSB has been misunderstood by the profession or at least looked on with disdain. As a regulator, our duty remains to protect the interests of the public – not, as some seem to expect, to champion the prestige of the profession. Regulation is as important in the sphere of legal services as any other – social care, charity collection, or payday loans. Ultimately, both the Bar and regulator share an interest in access to justice through advocacy and it is to this end that the BSB works tirelessly to ensure that barristers can take advantage of a liberalising market to benefit their clients.
After I step down this Christmas, I shall reflect on this period in my post with a sense of satisfaction and achievement. One of the things that is most gratifying has been the introduction of the new BSB Handbook and with it: the removal of numerous practicing restrictions, the modernisation of countless rules, and new measures to empower barristers to change their business models in line with consumer need.
We changed the Public Access rules to promote client choice – permitting barristers to take instructions from clients who may be eligible for legal aid but who have not yet taken up this option. We allowed junior barristers to undertake Public Access work provided they complete the new training and comply with the requirements in place to protect clients. These changes will help clients to go directly to a broader range of barristers, while being confident of the high standard of service they will receive.
Equally significant, barristers who are engaged in advocacy, litigation, and specialist legal advice will soon – at the time of writing – be able to use a wider range of business structures to offer integrated services to meet clients’ needs, after the BSB applied to become a regulator of barrister-led entities. It is hoped this will help new advocacy-focused business models emerge and flourish, and increase client choice. Good news for the public and the profession. We continue to do our best to empower and enable the Bar when it is in the public interest to do so.
Relationship with the LSB
However, as Lee’s magnanimous advocate Atticus Finch noted: institutions, even courts, have their faults too. Much of our raison d’etre is to uphold the regulatory objectives in the Legal Services Act 2007. But the Act is cumbersome and lacks finesse. When it is was enacted the age of austerity had not yet arrived. It has now, and the market is a different place to what it was before the financial crash. The BSB and Legal Services Board (LSB) continue to “disagree without being disagreeable” on our distinctly different views on the need (or lack thereof) for a single, giant regulator. My view is that smaller regulators exercise tighter, focused control; they understand better the issues of education, access, and ethical conduct pertinent to their regulated profession. The financial and healthcare markets show, only too well, the risks that come with a regulator too big, too uninformed, and too slow to react.
Just as our role as a regulator has sometimes been misunderstood, so have some of our efforts – particularly, the Quality Assurance Scheme for Advocates (QASA). Myths about QASA being an MOJ-led initiative – a plot to pave the way for government reforms – were untrue and unhelpful. In October, the Court of Appeal rejected, on all grounds, the appeal against the High Court’s decision to dismiss a judicial review of QASA. The court found that the scheme is lawful, does not interfere with the independence of the advocate or the judiciary, and that the LSB’s decision to approve it was neither disproportionate nor unreasonable.
To be clear: QASA has always been about protecting the public from the minority of advocates who are not as good as they should be. No profession in the public sphere is immune from quality assurance and it is paramount that victims, witnesses and defendants can expect the same standards of competence from all advocates working in the criminal courts. In October this year, the BSB removed the deadline of 31 December 2014 for barristers to register under the scheme; further announcements about the implementation of QASA will follow the January 2015 board meeting. I invite the leaders of the profession to work with the BSB and help us implement the scheme, in support of the administration of justice to which we are all committed.
Often we were challenged about why we were not shoulder-toshoulder with the Bar in the fight against cuts to legal aid. I did indeed fight – vociferously so – as a member of the House of Lords, but it is not the BSB’s job to mould government economic policy.
The value of independence
In my six years as Chair of the BSB, I had the good fortune to meet a wealth of talent at all levels of the Bar, but it is the younger generation of barristers that enthuses me most. They are the profession’s future. It is with this in mind that I greeted the long-awaited Legal Education and Training Review (LETR) with mixed feelings. On the one hand, it is reassuring to learn that a system – and especially an education system – more than meets current needs for competent practice; on the other, the lack of definition and extent to which the LETR is left open to interpretation has made creating consensus complicated. Nevertheless, the BSB has set out and embarked on an ambitious programme of reform. It is with regret that I will not be in post to see its fruits, and ensure that the highest standards are maintained.
These six years have also exposed me to the low morale, fatigue, and anxiety that grips parts of the Bar in the current time of unprecedented change. This profession has been exposed to much, but – like the Inns of Court near here – its proud façade remains unblemished. Its timber, bricks, and mortar are collegiality, commitment to excellence, and independence of spirit. All this, however, must be built atop a solid and strong foundation – regulation. That is what we – the BSB – provide.
For both barrister and regulator, the value of independence cannot be overstated. I believe that legal services regulators in the UK should aspire to be seen as world leaders in our independent governance arrangements. After six years, I fear that this is not the case; the myths and perceptions that there is too much governmental control over the legal profession eclipse the genuine independence of regulation that has been achieved in recent times. The days of self-regulation are rightly over, as they are in many other professions. Yet the design of this shift was not to attack the Bar, but to increase transparency and, as a result, public confidence in it.
I know that barristers welcome effective and efficient regulation, but need assurance that the regulator understands what the Bar does. My six years as Chair of the BSB has more than convinced me that it does have this understanding. We do not regulate in a vacuum. We are in the arena – be this assisting aspiring advocates to navigate their path to the profession, working together with chambers that need supervisory support, or investigating complaints, many of which are made by barristers themselves. We are accountable to the profession that funds almost all of our activities, of course. But our duty is and always has been to serve the public. Regulation of the Bar helps to protect its independence and preserve what is distinctive about it, while enabling it to modernise and move with the winds of change. I am proud of the work that the BSB has done and continues to do. It has been a privilege to play my part. I shall be sad to leave the stage, but confident that I leave it in good hands.