Consultation on budget – Bar Standards Board

A post relating to the proposed increase in budget for the Bar Standards Board, and whether it is fair and justified.

(In this post BSB means the Bar Standards Board)

Malcolm Cree CBE, Chief Executive of the Bar Council, has written to all of the barristers of England and Wales with concerns about a proposed hike in professional subscription charges. Cree’s message reads:

“The budget proposal (by BSB) for 2024/25 represents a significant increase in the practising certificate fee for barristers. The budget covers the work of both the Bar Council, as the representative body, and the BSB, as the body to which the regulatory functions are delegated. The vast majority of the increase in operating costs stems from increases in the BSB’s budget – all of which are detailed in the consultation paper. “

“The BSB has embarked on a major transformation programme, which is necessary, but we have been concerned from the outset at the piecemeal approach to the programme and the fact that the BSB has moved forward with substantial headcount and salary increases before fully understanding the root causes of the performance issues. In our view, their current end-to-end review of enforcement processes should have come first, putting improved efficiency before very substantial increases in resources. There should have been a completely transparent and fully costed transformation programme brief and a thorough benefits realisation plan, as basic programme management discipline requires.

Because of the unplanned and unbudgeted nature of many of the changes in the BSB, it is challenging for the ‘parent’ (Bar Council) to plan ahead sufficiently, and we are almost powerless to challenge our own regulator due to the rules imposed by the Legal Services Board. This situation is simply not what the 2007 Legal Services Act intended, and it is not fair to the profession.”

On 4 July 2023 I penned a post concerning the role and function of BSB. There, I questioned comments made by Mark Neal, BSB Director General in which he stated that self-employed barristers – around 80% of the total – have limited personal interest in how well the Bar as a profession was meeting consumer interests. By way of examples he challenged the independence of chambers to manage their growth and development; the referral process by which solicitors matched barristers with their clients – whether this entrenched inequalities; and whether barristers’ chambers were sufficiently accessible for those with disabilities.

BSB has a job to do in regulating barristers, but I question whether it should be regulating its own growth, reach and influence. The Bar of England and Wales has many overseers. Barristers are vetted by their Inn of Court; they are subject to a strict code of ethics and discipline within their chambers; heads of chambers, senior clerks and heads of department watch their behaviour; they are overseen and critiqued by the solicitors that instruct them; judges watch their every move; and there is a long history of self-regulation by their peers. On every communication, barristers announce mechanisms for complaints. In relation to access and discrimination their services are scrutinised by the Equality and Human Rights Commission under the Equality Act 2010.

For me, the question is not simply one of subscription charges – although as a part-time elder in the profession I will be affected by it. The essential issue is one of reach. Should the BSB be developing/expanding its role to this extent? Does the Bar really need more regulation? Might over-regulation destroy the independence of the Bar, turning us all into civil-service clones?

Am I alone in challenging the need for BSB to enter into micro-management of the Bar’s services and expecting us, and accordingly our clients – to pay for it?

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Silver Barrister

A post examining the fate of retired barristers, and whether they should simply be scrapped

Its Monday, and I am returning from two and a half months away from practice as a barrister. The case I am assigned to cover  is listed ‘not-before-11.30’ at Newcastle Family Court before a district judge. A colleague in chambers is for the applicant local authority, so I know it is in good hands.

It feels disconcerting to arrive in chambers after a long break. Annie looks up from reception to buzz me in, and greets me with a smile. “Hello Mr Twist, how was the trip?” “Fine, Annie, but it does seem strange to be back”.

Yes, it does feel very strange. It reminds me of the first day at school after a summer break. The smell of the building – a combination of coffee and hot paper on the scanner; the sounds of articulate voices drifting in corridors; light slanting through the dust.

The problem is that my colleagues have been beavering away during my recess – finding places to park or taking trains to court; bumping their wheeled cases along pavements; emptying their pockets at security; meeting solicitors and clients; and advocating before judges and juries. Whilst that film has been running, I have not been watching, or even present. The world has moved on a little, and I have remained still.

This mood lasts but an hour before momentum drives it to the back of my mind, and I question if I have ever been away. The meeting of advocates sees tight-scripted positions coalesce into agreement; the judge smiles and approves our efforts, signing the order with a few kind words. And the day becomes just another day in the life of a busy barrister.

But, as you would expect with this blog, there is an unresolved issue – not with the case – but with me. Advancing to the end of professional life, I ask myself about me; my longevity at the Bar, and what lies ahead. My colleagues become younger as I age. My conversation is on the differences of the past rather than the opportunities of the future.

Today I rise early to complete my attendance note for yesterday’s hearing. BBC Radio 4 burbles in the background. ‘The Life Scientific’s Adrian Thomas explains to Jim Khalili about ‘silver engineers’. And with those words suddenly all becomes clear.

When it comes to retirement, as a species we waste considerable resources, experience and skills. In another blog I addressed the question of preparing for retirement. Here I propose to extend those ideas into the new concept of the ‘silver barrister’.

Like the ‘silver engineer’, the ‘silver barrister’ is one who for whatever reason has decided to retire from active practice, but who still possesses the energy and capacity to contribute professionally. This contribution may be in relation to mentoring, supportive training, assisting or managing complaints and grievance processes, preparing legal digests, library management, or helping the chambers’ head and executive with a plethora of tasks. The ‘silver barrister’ provides a safe, available and sufficiently independent pair of hands – backed up with a professional lifetime of experience.

As a facilitator, I ask myself about the ‘balance of reward’ from such an arrangement? Here I list what I consider to be the essential characteristics of the role:

• The status and role of ‘silver barrister’ should be confirmed and defined by the Bar Council in collaboration with the Inns of Court.
• Silver barristers would be invited/elected by their chambers for continued membership for a renewable twelve month term.
• They would not have rights of audience or independent advisory status as barristers, and so be exempt from professional indemnity insurance requirement, and professional competence regulation. Their chambers would pay a nominal annual Bar registration fee.
• Their status as non-practicing consultants must be declared clearly on all professional communications.
• They would not be entitled to remuneration for their role as silver barrister, but may be remunerated by a practicing barrister for advisory/preparatory work undertaken for that barrister.
• Individual chambers may decide with regard to internal arrangements, such as voting and chambers fees and charges.

As pressures on chambers administration – and the potential contribution from retiring seniors increase, why not look at that symbiosis to match needs and resources? This may be the ideal solution for our profession – for both young and old alike.

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

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Stobart Barristers

A post to look at the Eddie Stobart subsiduary, Stobart Barristers which are to provide direct public access in criminal cases.

‘Stobart Barristers’ was formed last year, charging fixed fees and using paralegals to instruct their team of barristers. Their legal director Trevor Howarth said,

“We can deliver the service at a cost that’s palatable for the taxpayer, our business model was developed with this in mind”

“We …are well known for taking out the waste, and the waste here is the duplication of solicitors going to the courtroom. At the moment there are 1,600 legal aid firms; in future there will be 400. At Stobart, we wouldn’t use 10 trucks to deliver one product.”

Trevor Howarth has developed some insight into the legal process. He is shortly to face trial for contempt of court , although it has to be said that the background to the allegations is decidedly murky. But, no doubt it places him in an informed position to comment on the provision of legal services.

In my previous blog ‘The Price is Right we looked at the impact of third party investors moving into the legal market place. There, holding company LawVest introduced their Riverview concept, causing both consternation and interest amongst legal professionals. Other recent entrants include Parabis.

The Bar Council, spearheaded by current Chair Maura McGowan, has launched its 38 degrees petition to oppose the move to competitive tendering for publicly funded criminal defence contracts. Whilst understanding the potential for problems, the blogger does not share the Bar Council’s calamity vision.

We are, after all, dealing with public money, a finite resource. A proper legal service for the defence of criminal charges is essential, but not at unsustainable cost. The proliferation of criminal defence practices during the blogger’s career has not added to the quality of representation, as neither has the higher rights of audience for solicitors improved the legal landscape.

Is the time not right for those who spend public money being more accountable for the costs?

With direct public access to an expert barrister, should the Bar not be focusing its attention on obtaining and managing public funded contracts, rather than supporting the disparate high street solicitors practices of the past?

Public Access

Once, a fringe, micro-aspect of work at the Bar, is Public Access to become the way forward to see the Bar through the 21st century?

Readers of the blog will know my friend Matthew Shardlake. Matthew was a tolerably successful advocate, and  ‘well connected’  for his time. Is this why he is one of the rare survivors from the 16th century? He was, of course, the fictional barrister created by C J Sansom for his Shardlake series ‘Dissolution’, ‘Dark Fire’, ‘Sovereign’, ‘Revelation’ and ‘Heartstone’, published between 2003 and 2010. Sansom’s novels chart the fate of the Tudor barrister as he played out his part in the sensational reformative events of the time.

My interest in Matthew Shardlake is less for his historical role, but more for his current relevance. It seems, in the times of Henry V111, that barristers operated a very effective form of public access. Indeed the work of the ‘solicitor’ was confined to that of a clerk – preparing cases for the barrister who would advocate in court. The difference was that the barrister received his (for in the C16 barristers were male) instructions from the client, and the barrister advised the retention of a solicitor or clerk to obtain depositions and liaise with the court.

Perhaps a sign of hard times, with economic recession and job insecurity, members of the public are questioning the cost of solicitors’ services, and why they really need them. With ever increasing levels of literacy and huge assistance from the internet, many clients want to tackle the basic tasks themselves rather than pay for a solicitor’s silver-plated service. Some appear as litigants in person; but others are becoming ‘supported litigants’, who retain a barrister for the tasks of advising them and advocating in court.

The change comes at a clear cost to the legal profession. Many solicitors are feeling the rub – just as the Bar felt when solicitors sought and obtained higher rights of audience. Neither is the Bar immune to collateral stress from the fact that non-legal clients are preparing their own case.

Well managed, the advent of public access need not be hard for the Bar, and may be part of its salvation. For years, barristers have had to await a solicitor’s instruction, courting them and managing their preferences. But with direct public access, clients have the chance to check out a chosen barrister and instruct them directly. They receive early, cost-effective advice and keep control over the purse strings. The professional roles are reversed – now the chosen barrister nominates a solicitor to undertake only those tasks that are beyond the client.

So, we return, as inevitably we would, to the days of Matthew Shardlake. The court may not be the ‘Court of Common Pleas’ – now more probably a county or family court in the provinces – but the re-ascendance of the Bar is possible.

More and more clients are going to seek early and less-costly contact with the barrister of their choice. They will have read about them in the press, met them in their communities, checked out their profile on a dizzy dozen of web sites and want to hear how their case looks to the practitioner who is going to advocate it. Wise lay client – lucky Bar.

Having led the way in public access to the Bar by piloting for the Bar Council for England and Wales the first two schemes under ‘Bar Direct’ in 1999, the blogger has had a regular ongoing relationship with direct access.