I am hoping to complete one Chairman’s Column without ever uttering the words “legal aid”.
The BSB is about to consult on what at first blush appears to be a very unexciting topic. Appearances can be deceptive. The consultation on entity regulation, in a nutshell, will spell out the possibility that the last restrictions in the Bar’s Code of Conduct on direct access will be removed. The Bar can already collect evidence, prepare witness statements, conduct correspondence and attend police stations alongside clients. There are very few activities left which need to be liberalised before barristers can conduct litigation in its fullest sense. These are serving court documents and holding clients’ money. Given where we have got to already there does not seem much logic in preventing the Bar from serving court documents. Holding clients’ money presents particular problems but in the context of litigation and advocacy it actually boils down to moneys to be paid when serving court documents, moneys to be paid out as disbursements for experts and moneys paid by way of settlement. The BSB is looking at creative ways in which chambers can manage funds for these purposes which fall short of the need to set up client accounts. If the Bar went down that particular line there are significant associated regulatory costs. But there may well be all sorts of less complex alternatives, for example the use of custodian accounts.
And the logical corollary of these changes is to allow members of the Bar to enter direct relations with clients without the need for a solicitor in the areas of advocacy and related litigation. To be sure, the BSB is not contemplating that the Bar will spread its wings beyond advocacy and ancillary litigation. It is clear that the BSB believes that the future for the Bar lies in a more modern approach to our traditional skills, and I agree. The Bar will continue to represent and regulate specialist advocates and advisers. The mooted rule changes are designed to entrench those skills but allowing chambers the possibility of much more flexible ways of working.
To supplement this the BSB is also consulting on the possibility that it should regulate entities, ie the sorts of companies and other vehicles that many sets are already setting up to deal with block contracting arrangements from local authorities, the LSC and others.
The recent survey of the Bar conducted earlier this year by the BSB, to which over 3,000 people responded, suggested strong and growing support for all of these moves to bring greater flexibility to the Bar. So when you see yet another consultation paper with an unexciting title, please make an effort to get excited. This concerns the future of the Bar as we know it.
Direct access – get trained
The Bar Council is going to start running its own training courses for direct access. The demand for this is huge. Chambers seeking to participate in future LSC tenders have made it clear that they wish to have many of their barristers trained. We hope to roll out courses in the very near future. We will also be organising training courses for a range of other areas such as police station attendances. Over and above this there will be courses and training to get the Bar ready for LSC contracting. We will have to charge for some of these courses but others will be provided free of charge. Various chambers have already asked us to conduct in-house training when they can get their barristers trained en bloc. The first courses will be run in Manchester and the second in Birmingham. Look out for details.
Local authorities want to send more work to the Bar
We have been in discussion with a number of local authorities which have been seeking our help on how they can bring more sets of chambers into their bidding processes for work. They really do want to use the Bar more since we are low cost and high quality which, in a recession, is just what they want. But sometimes we are just not as accessible as we ought to be and many procurement departments apparently find the set up of the Bar somewhat mystifying. We are accordingly putting together information packs for local authorities to provide them with the sorts of information they need in order to make instructing the Bar easier. One of the biggest complaints is that chambers are groups of individuals and there is no entity with which they can contract. They are looking at the Bar Council’s ProcureCo documentation and increasingly we will see that they will invite chambers who wish to be instructed to set up a ProcureCo with which they can contract with and which will enable them to simplify their billing arrangements with chambers. The key message is this – the more accessible we make ourselves organisationally the more work they will send us.
Nick Green QC is Bar Chairman