Regulation: Carrot or stick, here to stay

The theme of this year’s Employed Bar Conference was regulation. Melissa Coutinho takes a look.

The recent Employed Bar Conference (EBC) was particularly successful this time, according to the feedback from those who attended. That the weather was good, the subject matter topical, speakers varied and the venue, the plush offices of Stephenson Harwood LLP, could not have hurt. The title of the conference: “Regulation: carrot or stick, here to stay” was designed to cover as many practice areas as possible, to reflect the diversity of the Employed Bar. Everyone agreed that at least some of the programme was particularly pertinent to them, but as usual, areas that were unfamiliar to many in their professional lives, nonetheless stimulated interest.


Into a very full half-day that started at 1.30 and went on to 8.30, we covered consumer goods, medicines, devices, commercial considerations that apply to the grant of licenses and authorisations for products, the ethical considerations that apply in developing technologies not envisaged in legislation, media regulation, the new Bar Standard Board handbook  and revisions to the Code of Conduct, criminal sentencing, developments in health & safety and environmental law and professional regulation. There can be few “specialist” conferences that provide such variety. Responding to feedback, the committee agreed to alter the usual format for conferences, not providing breakout sessions, but retaining a single audience. By the end of the day, it was clear that these tasters into new subjects had inspired some people to consider changing their own practice areas, or at least expanding them.

Following a welcome, as co-chair of the EBC, I opened the conference by providing an explanation of the theory of regulation and went on to illustrate how this works in practice, where it takes effect well, and where there are pitfalls, drawing upon my own practice area of medicines, medical devices, their authorisation and their usage. Given that goods – from electronic cigarettes to breast implants – are presented with much misinformation in the media, it was useful to be able to explain factually the benefits that regulating such areas can have by managing the risks appropriately. We could not resist the temptation to include the more esoteric, and an abiding image of this session was an axolotl, a scientifically extraordinary creature that can remain biologically and physically suspended for many years if its environment is carefully controlled. The point made was that there are few comparators in real life with the existence of this relatively risk-free pet.

The keynote speech

Sir Alasdair Breckenridge, chair of the Emerging Science and Bioethics Advisory Committee and former chair of the Medicines and Healthcare Regulatory Authority, gavr our keynote speech. The insight he provided into the process that medical products go through, scientifically, ethically and commercially before they were available for consumers, was thought-provoking . The idea popularly held, that new medicines were designed to improve health in a way that minimised adverse effects as a commercial venture, was exposed as simplistic. Instead, the law as it currently exists, and the processes that occur in the development of medical goods, were juxtaposed. He concluded that new technologies and situations that legislators had not previously envisaged when creating the existing regime, meant there were likely to be legal changes in the future. He was assisted in answering questions by Dr Peter Feldshreiber, a dual-qualified medical doctor and barrister.

Lessons learned from Leveson

This was followed by a session entitled “The Leveson Inquiry: lessons learned and regulatory reform”. It was ably introduced by Thomas Jaggar, a member new to the Employed Barristers Committee, and confidently delivered by Matthew Nicklin, from 5 Raymond Buildings. Again, an area that has filled newspapers and television screens over the last six months, Matthew was able both to explain the background to the inquiry and cover existing safeguards and their efficacy. He entertainingly considered alternative regimes for press and media regulation and unusually for a speaker before a mixed gathering of lawyers, offered his own personal views on likely developments in this area, based on his years of experience in this field. This feature was particularly appreciated by his audience.

BSB introduction to new handbook

Sara George, an established member of the Employed Barristers Committee, and a partner at Stephenson Harwood LLP, whose generosity was responsible for our comfortable venue and hospitality, introduced the BSB session. Sarah Browne, member of the Standards Committee, Bar Standards Board, covered the changes in the Code of Conduct – an introduction to the new BSB handbook and entity regulation. A variety of new rules and guidance was in the process of being considered and while the rationale behind many changes were clear, the audience challenged those areas where the rationale was not so apparent (reporting other barristers’ misconduct), or where a new requirement was considered as disproportionate to the risk identified. The new handbook will be out later this year.

State punishment and corporate sentencing

Robert Banks, author of Banks on Sentence, a key text for any criminal practitioner, spoke entertainingly on a macro view of state punishment, with a micro view of corporate sentencing. He was introduced by Stephen Leslie QC, the self-employed representative on the Employed Barristers Committee. His amusing session considered ancient Greece to the present day. Technical glitches taken in his stride, he presented a sophisticated coverage of the principles of punishment and sentencing, before considering how society has changed and the law we have today. He illustrated, via a number of different pieces of legislation, where ambiguity was unhelpful and considered the underlying principles set out. Being able to examine in detail different sections in statutory instruments was an exercise that was welcome and familiar to all, but with the added interest of having the justification for the basis of some legislation challenged.

Regulatory crime

We were also delighted that the speaker Stephen Hockman QC, 6 Pump Court, a former Chairman of the Bar, respected author and an experienced practitioner of regulatory crime, covered a session on regulatory law in practice. While Stephen has a number of specialisms covering different regulatory areas, his talk focused upon a few key areas. Health and safety law, a regulatory area operating within the criminal courts which has been a growing area over the last decade, was of direct interest to over 50% of the audience, which covered some regulatory work. His knowledge of environmental law, and the key cases over recent years, was a sobering reminder of the impact that man can have on his surroundings and his fellow men. Indeed, this motif crept into many of the sessions, making the case for regulation being required where one person’s actions can impact upon many others.

Professional regulation

The final session, covering professional regulation, might have had the graveyard slot ,but nonetheless made for a very lively session. My co-vice chairs, Clare Strickland, assistant director, legal services, Nursing and Midwifery Council and Mark McConochie, legal assessor with the Disciplinary Panel of the Royal Institute of Chartered Surveyors and employed barrister for Transport for London joined me (a legal assessor with the GMC/MPTS), in considering the framework for disciplinary hearings, the foundation of the principles followed. There was as much debate over the difference between the different disciplinary procedures as there was interest in those employed barristers who had dual practices, allowing them to sit as legal assessors while being otherwise employed simultaneously.

Final questions and closing

The final questions and closing were economically and efficiently dealt with by Amanda-Jane Field, co-chair of the Employed Barristers Committee. It was followed by a drinks and canapé reception. We do not yet know if this will be the fourth successive year where at least one attendee of our conference will joyfully contact us to let us know that they have lined up a new job as a result of attending our conference and networking, but are keeping our fingers crossed. Despite the late hour, those who had attended were keen to converse with those speakers who had remained to the very end. It even encouraged those who had not previously been involved, to offer their services for a conference next year or otherwise contribute to Bar Council activities. A success all round we agreed.

Melissa Coutinho.

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Melissa Coutinho

Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.