The BSB acted to right the unintended consequence of SI 2013/2804 Criminal Defence Service (VHCC) (Funding) Order, which would have deemed VHCC fees reasonable for a temporary period of one month, just a few weeks before that provision is due to be abolished under the new Code of Conduct and Handbook, which comes into effect on 6 January.

In a letter to the Secondary Legislation Scrutiny Committee (7 November 2013), the Director of the Bar Standards Board, Dr Vanessa Davies, wrote: “Whether by accident or design, the appearance the timing of the SI creates is one of the Government seeking to exploit this brief window of a month to force acceptance of reduced fees by using a professional conduct rule in a way that was never intended, whereas from January market forces will apply.”

A policy statement was issued on 25 November to clarify that the deeming provision in rule 604 will not be treated by the BSB as becoming applicable to VHCCs during this brief interim period. This effectively brings forward the new regime, under which it will be the responsibility of individual barristers to make their own, reasonable, judgment as to whether or not a fee is a proper fee.

Davies commented: “As a regulator, it is not for us to have a view about how much barristers should be paid which is why the deeming provision was removed from the new Code altogether. Ensuring consistency of our regulatory arrangements, which have been carefully drafted and consulted on, protects the consumer as well as the barrister. It’s confusing for a rule to change its meaning for one month or so, so we have acted to ensure consistency and clarity about what the public can expect from the Bar.”

The BSB also said that it was urgently considering reviewing its existing guidance under rules 608 and 609 with regard to the position of barristers under current VHCC contracts, which permits barristers to treat their instructions as withdrawn rather than returned if the basis of remuneration has altered. It would consult in the New Year on revisions to clarify the relationship of those rules to a barrister’s obligations to the client and the court.

“In the meantime, barristers are reminded that they must reconcile any right to withdraw, because of a change in terms effected by the Ministry of Justice, with their professional obligations towards the individual whom they represent, who is not responsible for that change,” clarified the BSB policy statement.

The Bar Council also issued further guidance on the termination of VHCC contracts, notice of which had to be given by 1 December, on 26 November. It clarified that exercise of a contractual right to terminate was not a breach of contract, and referred barristers to rules 608-610 of the BSB Code of Conduct on the issue.

It has written to the Joint Committee on Statutory Instruments to raise concerns over the power of the Lord Chancellor to make the Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013, laid before Parliament on 1 November. The enabling provisions of the Access to Justice Act 1999 do not permit the Lord Chancellor to amend the terms of existing contracts, the Bar Council said.