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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The Bar, Inns of Court and the Bar Council

A post about the role of the Inns of Court and Bar Council.

On Saturday 13 June 1541, writer C J Sansom‘s fictional character Matthew Shardlake, a sergeant-at-law of Lincoln’s Inn, was called on by King Henry VIII to accompany his ‘progress to York’ where the King was due to parley with King James IV of Scotland. In his Shardlake series, Sansom – historian turned lawyer turned writer – provides a near perfect picture of the medieval Bar.

However, it was three hundred years before Shardlake that King Henry II first sent judges onto circuit. Those in need of representation before the King’s Justices could be helped by a literate friend, the narrator, whose task would be to read out the pleadings. The early narrators were to evolve into our first barristers, later granted exclusive rights of audience in the Court of Common Pleas.

The band of medieval narrators turned barristers was small and confined to the London Inns of Court. During the legal terms of Michaelmas, Hilary and Trinity, Sergeants and their apprentices who were not travelling with the judges would reside within the Inns close to the King’s court, leaving their wives and families to manage their country homes and estates in their absence. Their Inns supported every aspect of the barrister’s existence – his education (the first women, Ivy Williams and Helena Normanton were not admitted until 1922), his call and, helpfully, his professional development from apprentice at law – to sergeant – to judge.

Moving fast forward to 1970, the decade of my call, a few barristers had already migrated permanently from London to live and practice exclusively on the circuits. Leeds had acquired 65 barristers, there were 13 in Bradford, 13 in Sheffield, 7 in Hull and 27 in Newcastle Upon Tyne, making a total of 125 resident circuiteers. I moved from my chambers in the Temple to circuit in 1989 and by 1990, according to our chamber’s first brochure, there were 24 barristers practicing from York. Today the North Eastern Circuit has grown to over 1000 members of which my chambers comprise 104. Barristers of England and Wales numbering 17,000 are compulsory members of the Bar Council.

It was in 1883 that the Inns of Court formed a Bar Committee to provide ‘one voice’ for barristers. Twelve years later they funded the Bar Council, passing responsibilities for education and regulation which had become too onerous for the existing Inn structures. Now the Bar Council takes charge of almost all aspects of professional regulation – some which the barristers relish, such as education and guidance; some we tend to resent, such as management and discipline.

Yesterday, Mark Neal, Bar Standards Board Director General, questioned the current working practices of the Bar of England and Wales, suggesting that barristers may not be meeting the interests of their consumers (do follow the link to read the full text). To his credit, Joshua Rozenberg KC weighed in on his Substack blog in defence.

It may well be that Rozenberg KC makes a very good point. The purpose of having a Bar Council was to relieve the Inns of Court and provide positive benefits for barristers. Is Mark Neal’s intervention an example of the tail wagging the dog? Must our Council now seek to regulate all aspects of our professional lives and operations?

Matthew Shardlake would probably have shrugged off the Bar Standards Board’s intervention, ignoring it as he saddled up his pony ‘Chancery’ to ride off with his clerk Jack Barak in the opposite direction. Maybe Sergeant Shardlake has an important professional lesson for us all?

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