Tomorrow's Bar: Engaged in the future

This year’s Bar Conference was held on 2 November 2013 at Westminster Park Plaza. Counsel reports back.

Just a stone’s throw from the Palace of Westminster, over 550 barristers, clerks, practice managers, law students, journalists and interested observers gathered to take stock of a frenetic, and often bruising, year for the profession. But they also gathered to learn and discuss how to face up to the challenges of the future.

A lively opening keynote session featured a welcome from Conference Chairman, Saba Naqshbandi, the Chairman of the Bar’s address and a keynote speech from one of the leading advocates of his generation, and polymath, Lord Pannick QC.


None intended to take any prisoners, delivering robust defences of the values and value of the Bar as a thriving and relevant modern profession. But no less robust was the devastating attack on the Coalition Government’s tinkering with legal aid and constitutional law.

Maura McGowan QC used her speech as an opportunity to explain the contribution which the Bar makes to the communities it operates within. Publishing “The Bar in society: Barristers making a difference”, she pointed to the sheer volume of pro bono activity carried about by the Bar, despite repeated and demoralising cuts to legal aid. She said, to rousing applause, that whatever our worries and concerns, if people wanted to see the Bar of tomorrow, they should look to the young Bar of today and be optimistic about the future.

Lord Pannick QC took to the podium, paying a warm tribute to the Bar Chairman and the huge amount of work she has undertaken over her year in office on the profession’s behalf. He then took apart forensically the Government’s legal aid proposals, delivering a damning assessment of the Government’s lack of understanding of the value of advocacy to the Rule of Law. He focused on three main examples; the reduction in fees for criminal legal aid, calling on the Government to recognise the importance of that work; closed hearings in civil claims where evidence is sensitive in national security terms and claimants and their lawyers are not allowed to attend, which prevents advocates from challenging evidence; and the changes to standing in Judicial Review. It is on that last point that he delivered his most devastating blows, saying  the Lord Chancellor “needed a lesson in the separation of powers”, after Mr. Grayling had complained about what he viewed as spurious (though successful) Judicial Reviews.

Warming to his theme, Lord Pannick QC concluded a hugely well received speech by saying that the Government’s changes were impacting on our legal system’s global reputation for quality.

And in a jam-packed opening session, there was still time for Maura McGowan QC to award the annual Pro Bono Award to Sarah Hannett of Matrix Chambers for her excellent work on the City University Matrix School Exclusion Project, which provides pro bono representation to parents of children who have been permanently excluded from school.

Maura McGowan QC and Lord Pannick QC’s speeches and “The Bar in Society” are available in full on the Bar Council website.

The Criminal Bar’s fight for survival

Justice on the supermarket shelf: the CBA debate on the threat to its future

I had expected revolutionary anger: instead I found muted despair, well understood by intuitive and articulate CBA panel speakers. At stake was the sheer scale of the perceived assault on the criminal justice system and the enormity of the cuts. In a worst-case scenario, all that we hold dear is under threat, not least access to justice and a continuation of independent advocacy providing reasonable living standards. In such a fraught atmosphere, the well-articulated commonsense of the Attorney General earned respect, if not support. Again he had “fronted up the profession” and it was, to his credit, the speech of an honourable and decent man.

As Chairman of the CBA, Nigel Lithman QC offered calm realism but with a steely resolve to fight. You cannot tell a four hundred year old institution any more than you can tell an individual that you are terminally ill without them having that on their mind all the time. Sensibly, he has kept talking to the Lord Chancellor and is perfectly prepared to accept his word that 60% of barristers earn less than £50,000 a year. He had offered the brightest and best of the CBA to help to find some cuts, but he was in no mood to compromise on a determination to fight as the horror emerges in front of us. He asked where we would all be in five years’ time: his emails suggest a flight in despair. No-one else would stand for the enormity of a 30% cut in income and nor will we. Based on emails received, at least seventy Counsel will refuse to renew VHCC contracts, unsurprising in the light of the just published transitional arrangements. He evoked a picture of murderers and paedophiles walking the streets because of poor advocacy and, frankly, who is to say that he is wrong? For that is the logical conclusion of a serious decline in advocacy skills. He commended the Treasury Counsel’s submission based on 408 years combined experience.

Dominic Grieve QC believed that the glass was not completely empty. We do have a very expensive legal aid system, plainly under threat from the Treasury. Crucially he argued against withdrawal of those already doing VHCC contracts, but answering a later question, said that this decision must be the responsibility of individual barristers. But he asserted that abandoning current instructions is very difficult to square with the high standards of our profession. He spoke of oversupply of criminal barristers, supporting his point with figures demonstrating our expansion. He also spoke positively of the opportunities which electronic transfer could bring to the Bar, who in his view are uniquely placed to use it. Further he pointed out that to refuse to be assessed was not going to help the barrister’s case. As he put it tactfully, not to engage will be counter-productive.

Mukul Chawla QC, in a clear and very straightforward speech, asserted that we simply wanted to be heard and that was not happening. He spoke of his work summarizing the responses of his Inn to the proposals and the measured summary of all the Inns’ position by Lord Justice Pitchford. He urged us to read the Treasury Counsels’ 16 page response by some of the most measured and able figures at the Criminal Bar, and referred to the Minister of Justice as having “lifted his telescope to his bad eye.”

Advocacy in its purest and most persuasive form came from Paul Mendelle QC, as a very experienced defence advocate. This was a highly professional, forceful but not extreme attack, which resonated with his audience. It was the Bar at its best, and I warmed to his speech. His five point analysis included the knockout question - why not allow legal aid to keep pace with inflation? He spoke for every practitioner when he stressed the need for quality and not just paying lip service to it.

Richard Atkins QC from the floor asked rhetorically whether we can expect to see MPs’ salaries cut “as we are all in it together”. Jonathan Rich feared that QASA would threaten practitioners representing unpopular causes, a concern not shared by the Attorney in reply. Sir Ivan Lawrence QC, 52 years at the Bar, pointed out powerfully the potential political consequences of alienating us. Max Hill QC asked how experienced barristers could be expected to swallow the potential cuts in Complex Cases.

The CBA should publish the speeches of all the panel speakers, not least to capture the scope of the restrained anger and frustration. Picking up the theme of one perceptive questioner, in future how will the great advocates emerge from a diminished Bar? Your correspondent believes the transcript of this session would make uncomfortable reading for the Lord Chancellor. But the Chairman is still prepared to talk, and rightly, in my view. Is there not still a chance for independent arbitration? Our ancient profession deserves a much better deal.

Nigel Pascoe QC

Chancery Fiction or Family Reality?

Piercing the Corporate Veil after Prest v Prest

The Family Law Bar Association joined forces with the Chancery Bar Association to present a seminar on ‘Piercing the Corporate Veil’, (the legal doctrine whereby a court can disregard the separate personality of a company from its owner), in light of the recent decision in Prest v Prest [2013] 2 WLR 557. The session was moderated by Mr Justice Moylan, the judge at first instance in Prest in the family division, and the speakers were Tim Amos QC, a family practitioner, and Ben Shaw and Eleanor Holland, both commercial chancery practitioners. Amos and Shaw had represented the company, Petrodel, at both the Court of Appeal and the Supreme Court, whilst Eleanor Holland (along with Robert Miles QC) contributed to chapter in a book “Sham Transactions” (OUP), which considers the case. Although Amos was not involved in the case at the first instance, it was also revealed during the talk that Amos and Moylan J had both been members of the same chambers, which added a light-hearted touch to an altogether stimulating debate about the case and its possible ramifications both in the family and commercial courts.

Attendees were taken through the history of the case from first instance in the family division, through the Court of Appeal to the Supreme Court. Prest concerned a husband who was a wealthy oil trader with several companies, and divorced after a 15 year marriage with four children. His ‘assets’ were owned by companies, who were joined as parties when the wife brought ancillary relief proceedings. In finding of fact at first instance, Moylan J was severely critical of the husband, concluding that he had unrestricted access to the assets of the companies. He awarded the wife approximately fifty percent of a £37.5 million pot. He found that the husband had effective ownership of the company and that the companies and the husband were one and the same entity. Although Moylan J declined to ‘pierce the corporate veil’, he found that s24 1(a) Matrimonial Causes Act 1973 enabled the court to conclude that a shareholder of a company is able to transfer to himself properties owned by that company. He also concluded that the matrimonial home, also owned by the company, was held on a resulting trust for Mr Prest.

Three of the companies appealed, including Petrodel, who instructed Amos and Shaw. They came before two chancery judges - Lord Justice Rimer and Lord Justice Patten - as well as Lord Justice Thorpe, a family judge. According to Shaw, the two chancery judges “didn’t have much truck with the idea that a shareholder is entitled to a company’s property”. They applied the principle of Salomon and Salomon [1897] AC 22 that a company has its own identity, and concluded that s24 did not enable a court to dissapply established principles of company law. LJ Thorpe dissented. According to Shaw “he said this [appeal decision] was like a fast car on an open road for an evader”.

The wife appealed to the Supreme Court, where Amos (representing Petrodel as opposed to Mr Prest, who had gone AWOL) underwent a judicial grilling by Lord Wilson. “I had been on my feet for about 20 seconds when Lord Wilson said ‘you’, pointing at me. ‘You are in contempt: why should we listen to you at all?’ “I then had what felt like a rather out-of- body experience: it was as if I became the husband, in the dock, and Lord Wilson cross-examined me, as if he were counsel for the wife, for what felt like a very long time indeed”.

The Supreme Court’s remedy was to find that all the properties were held by the companies on trust for the husband. However Lord Sumption, who gave the leading judgment, was critical of family courts, stating that they “do not occupy a desert island in which general legal concepts are suspended or mean something different”. He also restricted the application of ‘piercing the corporate veil’ to situations where an individual acts with impropriety and misuses corporate structures. This means the question now to be asked is “Is the corporate form being used to try to evade an obligation?” The Supreme Court were also of the opinion that the doctrine should only be applied as a last resort.

In the debate that ensued, concerns were raised by attendees that Prest would alert the HMRC to investigate the possibility that properties ostensibly owned by companies were in fact held by those companies on trust for individuals. However Mr Justice Moylan pointed out that Prest was only likely to affect “Mr and Mrs Veneering”, where individuals had set up a company to give the veneer of respectability, but like Prest had very little paperwork to support it.

Amos believes that the family courts will continue to use the doctrine of ‘piercing the corporate veil’ if they felt that a party had been disadvantaged by the abuse of corporate structures, and had no other remedy available.

“In one sense, the case is no more than the latest example of the old rule, in relation to those whom the court has found to be bad people (for want of a shorter term), that ‘Bad people lose’, “ he said.

Chris McWatters

The Shift in the Balance of Power

The EU Law Committee, European Circuit, and Bar European Group Powers workshop

Who is leading Europe and what does that mean for the UK? Should we remain in Europe or is it past its sell by date? Are there economic benefits to remaining in the EU or should we forge our own trade partners? Does the EU have the right to interfere in national policies such as votes for prisoners? What’s the future for the Euro? Are we heading towards a federal Europe?

It could scarcely be a more pertinent time to discuss the balance of power between the EU and the UK and as a result the Government conducted a two year ‘Balance of Competencies’ review which was published earlier this year. You may have missed it. It was published on the same day Prince George was born, and without a press briefing. Perhaps because the Government did not expect to be told that the EU has faults but membership is largely beneficial to the UK.

There is no doubt the EU has been damaged by the economic crisis and its handling of it. Its institutions are in desperate need of reform – the European Commission for example is weak and ineffective. The paradox of the European crisis has been that the more powers the Commission has accrued, the more it has lost its moral authority. The European Parliament in contrast has grown in power and it has pushed the Commission to regulate areas outside its expertise that should be left alone.

The upshot of this is that the European Union is suffering a crisis of legitimacy - it needs reform, in order to ensure there is no break up of the Euro if for no other reason. Were the UK Government to follow a reform agenda, it is likely to find support among other member states. However, it has chosen not to do so. It has chosen to opt out of measures and then seek concessions in order that it can opt back in. This approach is doing more harm than good. The more the UK opts out of measures, the smaller the voice it has to influence and the impact of this is being seen in large swathes of EU policy. Where Britain used to lead, its authority has been weakened – we are sleep walking into a lack of influence.

Following the speakers were lively contributions from the floor covering diverse issues such as Britain’s continued EU membership, the positive impact of Europe on UK law, and the weakened influence of the common law were the UK to leave the EU.

The speakers were Michael Bowsher QC, chairman of the EU Law Committee, Evanna Fruithof of the Bar Council Brussels office, Charles Grant, founder and director of the Centre for European Reform and Diana Wallis, president of the European Law Institute and former vice-president of the European Parliament. The session was moderated by Lorinda Long, vice-chair of the EU Law Committee.

Nichola Higgins

Is the Future Fused?

The Young Barristers’ Committee debate on recent changes to working practices

With changes to the rules on direct access and self-employed barristers being able to undertake litigation in the New Year, the question of whether the Bar will continue as an independent referral profession is one that is asked with increasing regularity. To generate a lively discussion, we asked three eminent Silks to consider this question and give their thoughts. Max Hill QC, former Chairman of the CBA and Head of Chambers at Red Lion Court was first to speak. He was followed by Robin Tolson QC, Chairman of the Access to the Bar Committee and a specialist in family law, and Robert Webb QC, General Counsel at Rolls Royce plc. Although each had different perspectives on how regulatory changes would affect young barristers working in their areas of practice, they were unanimous in their conclusions: that the future is NOT fused.

Far from being a threat to the referral profession, Robin Tolson QC considered direct access work, in the right cases, to be an important adjunct to the work that barristers do, and that whilst there may be a blurring of the lines between the two sides of the legal profession, there will always be a need for specialist advocacy services. For Robert Webb QC, the future of the Bar is assured because barristers are ‘individual fearless advocates’ who ‘will never be usurped in advocacy.’ We had hoped to generate a panel debate with the audience, but it soon became apparent that the discussion had spread further afield, to those who were following the discussion on Twitter. The suggestion that ability alone would be enough to sustain anyone at the criminal Bar without independent means was rejected. This point was touched on by Max Hill QC, who argued that ‘the chambers structure, under newly-relaxed conduct rules… provides the foundation on which the criminal Bar can build a diverse and exciting future.’ The key, he said, was in diversification, giving examples from his own set as to how those undertaking publicly funded work could subsidise chambers by finding new and innovative ways to develop income streams. For the young Bar, secondments would provide not just much needed financial stability but an opportunity to diversify and develop contacts for the future; chambers would be ‘ports in the storm’ to which young barristers could return many times over many years if need be.

What came through loud and clear from the panel was that in striving for excellence in advocacy, there will always be a place for the independent Bar, but we need to make the most out of the various regulatory developments and capitalise on the new opportunities they can offer. As Max Hill said: ‘Without fusion, the Bar of the future can and should be a profession for the brightest and best to aspire to join; but the route to joining us may change, and the course of a career at the Bar may be different from our experience.’

Hannah Kinch

Building your Brand

How to win modern business at the modern Bar

Marketing the services of the Bar has become a popular topic over the last few years. Sets of chambers and individual practitioners increasingly understand the importance of promoting their brand and service offering in a growing marketplace which demands an online presence. So it was no surprise that this session was well attended, even if it was not CPD accredited.

The Bar Council’s Head of Communications, Toby Craig, moderated the session, opening with the insight that growing competition in the marketplace means it has never been more important “to find ways of convincing people that they should go to you”.

Emma Waddingham, Director of Emma Waddingham Consulting, talked to delegates about the urgency to start marketing their services. She was keen, however, to impress upon the audience that although marketing is not “rocket science”, it must be well thought-through and targeted appropriately: “Creating a brand is more than just a logo – it’s the whole communications package.”

Emma explained the importance of chambers’ websites, noting that they are the first step in convincing potential clients that they have come to the right place for their legal problem. But, she questioned, once they are on your homepage, then what? The website must offer an easy route to the answer that is being searched for, or, with just a few clicks of the mouse, your prospective client will quickly leave your website for a competitor’s, which does offer the right information at no effort. “Think of your approach as a funnel – attract as many prospective clients as possible, and funnel them quickly and effectively to the right information by engaging on what matters to them”.

Paul Mosson, Director of the Bar’s new escrow account, BARCO, spoke next, helping delegates understand the importance of promoting different business models. Looking at the specialised services that barristers can offer, many now available through Direct Access, he explained how important it is for the Bar to be vocal about changing its approach to accepting instructions, and to let prospective clients know that, where appropriate, the Bar can be directly instructed. Understanding that there are difficulties with “biting the hand that feeds you”, and not upsetting the referral system the Bar has operated on for years, Paul outlined the options available to barristers to advertise Direct Access without risking established relationships with solicitors. The referral can go both ways. The Bar is a profession of ethics and integrity, and where necessary will refer Direct Access work back to solicitors.

Christopher Masters, who has advised some of the world’s largest companies on marketing, was last to impart knowledge about how barristers can “build their brand”. He began by explaining that the environment in which the Bar operates demands that barristers market themselves. He talked about the importance of understanding the client, telling delegates to “be the voice of the client”. He said that this is achieved by building a brand which is clear, simple and consistent in its messaging, and targeted precisely. A brand which is a thought-leader, one which is engaging, and not simply bombarding people with unconstructive and banal information on Twitter.

Sarah Tavakoli

The Ethics of Dual Practice

Role-play at the Employed Bar Committee session

The Employed Barristers Committee (EBC) used a format that some Committee members had expressed misgivings over: using role-play with senior people acting junior roles and vice versa. In fact the session was a resounding success with the scenario being entertaining and thought-provoking in turn. Philip Bennetts QC (CPS) and Stephen Leslie QC (Furnival Chambers) acted their socks off, playing respectively a cautious but absent minded barrister representing a terrible client, the latter managing to convey that he would do just about anything to get away with murder. Presiding over them was Melissa Coutino (GLS/dual practising), who brooked no nonsense but could not quite keep a lid on her prejudices. Of course, all this was scripted; the actors were simply playing the roles ascribed to them.

The session was entitled “The Ethics of Dual Practice” and accordingly focused on barristers who are engaged in dual practice and the type of dilemmas they might face. The acted scenario allowed the accomplished moderator, Andrew Walker QC, Chairman of the Professional Practice Committee (Maitland Chambers) gently but firmly to take the audience through the options that the barrister faces and to share best practice. Such was his relaxed but persuasive style that the audience needed little encouragement to participate but willingly shared their views and experiences. In fact, the most obvious of Andrew’s skills was to keep the session moving so that it was able to end on time.

Insurance, conflict, “Chinese Walls”, disclosure, payment, direct access, clerks’ fees and referral fees were covered. Those members of the audience who had out of date information or had simply failed to consider certain issues thanked the EBC for putting on this session. However, many participants publicly expressed concern at the lack of information that was readily available to those entering dual practice. More than one person suggested that guidance and templates for appropriate Memoranda of Understanding could be helpfully made available from the BSB. Further, from the audience came the question of whether dual practice was considered more of an employed practitioner issue and therefore given less resource.

The EBC was able to share that approximately 1% of the practising bar is now dual-registered; the issue is far from being one that only interests the Employed Bar. The session ended on a high, when Andrew checked and found that 100% of the audience considered dual practice positive and had not been put off as a result of the session.

Melissa Coutinho

Appellate Advocacy: confident, efficient and effective

How experienced practitioners deal with the challenges of the Court of Appeal

The Court of Appeal is a uniquely terrifying tribunal. And to my great joy I am not the only barrister whose soul shrivels at the thought of it – the terror it engenders was the primary theme of this engaging and lively seminar. Sarah Clarke (Sergeants Inn) ran a reassuring “therapy session” disclosing that everyone, even the trainers, a notably tough bunch, felt The Fear. Acknowledge it without shame she said, then work out what the problems are and why they make you anxious. She asked the audience for their greatest fear - the geography of the place got one barrister, the huge echoing courts with judges literally on high. Another fretted about how thoroughly their Lordships had read the papers and what to do if they hadn’t. Yet another horror was the judicial habit of brushing aside a whole planned argument and going radically off-piste: Sarah likened that to being a squash ball getting whacked from wall to wall. Half the audience winced at that, and the other half grinned sheepishly.

Simon Monty QC started his talk by quoting Jonathan Sumption’s apercu about the Court – “they are bigger than you, and they hunt in packs”. After thus raising up the fear he soothed it down again with precise, cogent advice about written arguments and grounds. Be precise, be cogent, best point first, be pithy, don’t waffle. Use your skeleton as a flexible springboard for oral argument and don’t just read the thing out. Follow the Practice Direction on citation of authorities, check your bundles for accuracy, and pick up on all typos.

Sarah Whitehouse, Treasury Counsel who has conducted countless appeals, had us quaking again by describing her feelings after a case: like landing safely after your first hideously scary parachute jump. Not much comfort there, but she then gave tips for survival. She urged us to cross refer everything to within an inch of its life so that you can go immediately to any point anywhere and escape stumbling over an off-piste question. Sit in court until your case is called on to get the feel of the place; always know what your first three lines are going to be; draft a speaking note to order your thoughts; have a separate page for each ground for easy movement between them; and if you start saying ‘at the risk of repeating myself’ then stop, shut up and sit down.

Bernard Richmond QC was empathetic to their Lordships, whose staggering workload means they should not be agitated by rubbish. He recommended thinking before one speaks, and not going on the attack. This was moderate advice moderately given – and hilariously undercut by his comparing an appeal he did to the movie Interview with The Vampire – before his first sentence was half uttered he had three vampires chewing at his neck.... but we ended on laughter, and not in fear.

Jeannie Mackie

Law, War, and Human Rights

Examining the international legal framework governing armed conflict

This plenary session, convened by the Bar Human Rights Committee (BHRC), focused on “lawfare”, specifically the judicial scrutiny of action during armed conflict. Revisiting this question was essential. Only two weeks earlier, on 18 October, the Policy Exchange, a UK-based policy institute, published a paper, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ (free PDF: http://www.policyexchange.org.uk/). It asserts that a “sustained legal assault” – no pun intended, presumably – has been inflicted on our armed forces, “paraly[sing] the effectiveness of the military with catastrophic consequences for the safety of the nation”. [See appendix C (‘Table of cases’) of the report.] The report boils down to disagreement with the Supreme Court’s ruling of June 2012 that the HRA 1998 applies to British troops even when deployed on active service abroad: Smith and Others v. Ministry of Defence. That case concerned the deaths of soldiers which resulted during deployment in Iraq using Snatch Land Rovers and Challenger II tanks.

Plaudits for that report have come from Philip Hammond MP, Secretary of State for Defence, and Chris Grayling MP, Secretary of State for Justice. Consistently with MoJ proposals for reforming judicial review, recommendations of the report are:

  • “Combat immunity” – military personnel should be insulated from the risk of prosecution in respect of their strategy (and allocation of resources) decisions;
  • MOD exemption from the Corporate Manslaughter and Corporate Homicide Act 2007;
  • Derogation from the ECHR for deployed operations – i.e. human rights norms; and
  • Removal of legal aid for “non-UK persons”.

The first panel speaker, Professor Francoise Hampson OBE, offered an admirably crisp analysis of civil law implications for command responsibility. The thrust was: field commanders probably have nothing to fear from civil proceedings where no criminal acts have been committed. Field commanders have reason to fear civil proceedings which follow commission of criminal acts.

The second and third speakers together offered thirty years or so of judging, prosecuting, and defending at the ad hoc tribunals and the ICC. Judge Howard Morrison QC of the ICC, accrued twenty-seven years on the Midland and Oxford Circuits, while  Iain Morley QC combines domestic and international criminal work. Common themes upon which both speakers agreed were:

  • Protraction – years and years – of legal proceedings, from commencement to judgment, is, on any view, unacceptable, regardless of acquittal or conviction. Rates of remuneration are such that parties have disincentives to actively manage cases;
  • Soundings from Hilary Clinton’s office suggest that the US is inclined to consider afresh becoming a signatory to the Rome Statute;
  • The principle of complementarity – that defendants should be tried in national courts, wherever possible – is welcomed by the ICC as consistent with the Rome Statute. There should be reassertion of this principle, conducive with deterrence, visibility of trial processes, and meaning to local communities of trials; and
  • The staffing culture at the ICC is no longer perceptibly hostile to defence counsel....

The session, which was moderated by Kirsty Brimelow QC, concluded with questions and points from the floor from participants who identified themselves as private law and regulatory counsel.

Abigail Bright

The Bar Standards Board

The new BSB handbook and the risk-assessed monitoring

“Change ahead” warned the postcard distributed by Bar Standards Board before the session on the new Code of Conduct and supervision arrangements. The Bar is often unfairly criticised for being reluctant to change and so it was satisfying to see legal minds whirring as delegates began to appreciate the wealth of opportunities the new Handbook and forthcoming entity regulation offers.

Head of Professional Practice at the BSB Ewen Macleod explained: “The LSB challenged us to be more outcomes-focused in our regulation and Handbook is our response. We redrafted rules and guidance, and included a description of desired outcomes in the Code itself so the public interest factors that barristers should consider when applying the rules are always clear.”

The public interest focus is perhaps clearest in changes to rules around litigation. For the first time, self-employed barristers can apply for authorisation to conduct litigation, which is good news for consumers approaching public access barristers.

The new Handbook includes some practical changes too. Now barristers will be able to pool together risks and resources, as rules preventing self-employed barristers from sharing premises and forming associations with non-barristers are removed.

Further changes to international practising rules include replacing the definition of ‘international work’ with three new definitions of “foreign work”, “foreign clients” and “foreign lawyers”. The new definitions will allow the Handbook to be applied to foreign work in a more consistent and logical way than is currently achieved by the existing Code. Moreover, the public access rules will now apply to foreign work.

Vice-Chair of the BSB, Patricia Robertson QC, explained that underpinning the new Handbook, is a new ‘risk-assessed’ approach to supervision. Under the new scheme, all chambers and sole practitioners will be designated a risk level by the BSB. Risk will be assessed in two ways; impact and likelihood.

Evidence to inform the risk assessments will be gathered through supervision returns and other requests (either remote or through visits). Those identified as ‘high risk’ will be supported by the BSB to reduce the likelihood of serious problems occurring.

Matthew Nicklin QC, Chair of the BSB’s Standards Committee assured delegates this would not be a ‘big brother’ approach. Well run chambers with clear policies on matters such as financial management and pupillage training will gain a low risk rating and have limited contact with the BSB.

An enforcement strategy has also been developed and this will be supported by a set of new enforcement policies that will also be applicable from January 2014. These include extending administrative sanctions to cover breaches of any rule with the fine limit being raised to £1,000. Where administrative sanctions are not considered appropriate the breach will be treated as professional misconduct and, where it is in the public interest to do so, disciplinary action will be pursued.

The new Handbook is being tested on the BSB’s website http://handbook.barstandardsboard.org.uk (designed to be compatible with mobile devices) and the Handbook comes into force on 6 January 2014.

Matthew Nicklin QC

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