Investing in justice

The new way of calculating the practising certificate fee; compulsory and voluntary payments; the provision of core services; and investing together in access to justice.

It is that time of year again when the Bar Council asks you to pay for the privilege of remaining a barrister for the next 12 months.

And, like any demand for our hard earned money, it is unlikely to be the most welcome document to fall into your inbox or onto your doormat. As busy practitioners, although all the information is there on the Bar Council website, many of us probably don’t take quite as much time as we ought to understand precisely how our dues to the Bar Council are made up and how they are spent.

Part of my job as Chairman is to understand all this and I thought it might be helpful just to explain how the financial side of the Bar Council operates. Basing the PCF on fee income There are two fees that the Bar Council seeks from practitioners.

One is a compulsory levy and one is a voluntary payment: so let’s deal with the compulsory element first. This is styled the practising certificate fee (PCF). Over the last 14 years, the means of calculating the PCF remained unchanged. It was based on the seniority of the barrister expressed in the number of years’ call.

There were various bands attracting an increasing fee. There was a widespread feeling at the Bar that this was no longer a fair way of calculating the PCF. The disparity between fee income from publicly funded work and that derived from private sources had widened to such an extent that real hardships and inequities were occurring. Accordingly, in 2012, the Bar Council launched a consultation asking the profession for its views as to changing from that structure to one based on fee income.

The results of that consultation were that there was overwhelming support for a change from a seniority basis to a fee-income basis of calculation. Clearly, a decision of this magnitude has very serious ramifications but, having considered all the consequences and in consultation with the Bar Standards Board, the Bar Council approved the principle of a change of system and the new level of fees in September 2013, and an application was made to the Legal Services Board (LSB) to approve the change. As a result this year for the first time you will receive a demand to pay your PCF based upon the new, and clearly fairer, system.

How the PCF is spent

So, what is the PCF all about and what does it do? Well, in the first place, you may naively have thought that this was your money that you had paid to the Bar Council for it to use, as it saw fit, to provide you with representation and to sell the Bar both at home and abroad. However, if you did think that, you would be wrong. Under section 51 of the Legal Services Act 2007, PCF money can only be spent for “permitted purposes.” What is critical to a proper understanding of how the Bar Council is funded is that the permitted purposes largely relate to the regulatory duties of the Bar Council, imposed on it by statute, and delegated to the BSB.

As a matter of law, only a proportion of the PCF can be spent on specified representational activities. Work to promote the Bar, develop business for the Bar and lobbying in the Bar’s interests fall outside that scope. I may be wrong about this, but I suspect that quite a large part of the practicing Bar completely misunderstands the position.

The real value of the BRF

I now turn to the voluntary part of the funding request. This is called the BRF or Bar Representation Fee. It used to be called the Member Services Fee but the newer name more accurately reflects what it is all about. It is from this fee that all the representational and promotional work in the Bar’s interests is funded. This includes representations to government, our media work, our lobbying, our press activities, national and international development work, direct access initiatives and mentoring services. It also supports the Bar Nursery, which is going from strength to strength in helping barristers with young children to continue their work, secure in the knowledge that their children are in a safe and stimulating environment.

Without your continued payment of the BRF, therefore, we could do none of the critical jobs so necessary to preserve or restore access to justice.

Whereas the BRF is a voluntary payment, I hope all barristers recognise that it is not, in reality, an optional extra. The funds derived from the BRF are used to pay for our core services to the Bar and what most barristers would hope the Bar Council is all about.

If you do pay your BRF, may I extend my sincere thanks on behalf of the Bar Council and the profession at large? If you have not been paying it, hitherto, please think again. The Bar of England and Wales, and some of the poorest and most disenfranchised people in society, whose access to justice we are doing so much to restore, simply cannot do without your help.