The The public access scheme allows lay people to instruct barristers directly, without the need for the involvement of a solicitor or other professional client. The scheme is limited in the areas that can be covered and the different sorts of work that must be done by both barrister and client.

When the Bar Council introduced the public access scheme in 2004, it was careful not to allow public access in all areas of work in order to ensure that the service provided by barristers continued to be in the interest of the client and the administration of justice generally.

It also agreed that, as part of the implementation, the scheme would be reviewed after three years to establish whether it was working properly. Under the present regulatory arrangements, this review falls to the Standards Committee of the Bar Standards Board (BSB) to conduct. The Standards Committee has established a working group, which includes experienced public access practitioners, chambers’ managers and lay members to take forward the review. In this article we provide background to the group’s work and to comment on the issues raised by the recent consultation.

Origins of the public access scheme

In February 2002, a working group chaired by Sir Sydney Kentridge issued “Competition in Professions”, a report advocating, in certain circumstances, the direct instruction of barristers by the public. The paper considered recommendations made by the Office of Fair Trading, which had criticised existing limitations on the practicing capacity of barristers.

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In March 2002, a second working group chaired by Guy Mansfield QC issued a paper on the reforms needed to make the public access scheme workable. The public access scheme began operation in 2004, following the recommendations of the working group. It was felt that although the sources of barristers’ instruction should be widened, the areas of work available to them should not. This concept has underpinned the public access scheme since then.

In 2006, the BSB set up its current working group, which I now chair, to look into the progress of the scheme since its creation. The question of whether there should be any change to the areas of work covered by the scheme is just one of the matters we are looking at.

Process of the review

There are currently over 800 barristers offering public access services to a wide range of clients in different areas of practice: most as an addition to their standard practice, a few specialising solely in public access. The working group issued a preliminary consultation to all barristers who had registered with the Bar Council as intending to undertake public access work, seeking views on the operation of the scheme. Public access barristers were asked to supply copies of the consultation to their clients, in order to canvass their views. Further views were also sought from barristers attending public access training at the College of Law.

The responses to the preliminary consultation highlighted a number of areas where there were concerns that the scope of the scheme needed to be widened or adapted. These concerns were reflected in the working group’s second consultation, issued in April 2008, which suggested a number of possible reforms and sought views on them from barristers, professional bodies and lay clients who had made use of the scheme.

A number of different aspects of the public access scheme were considered by the consultation. These are dealt with in more detail below.

• Requirements to take on public access work

Public access may be undertaken by barristers of three years’ call: this is the length of time for which, under the Code, a barrister must work with a person able to provide suitable guidance in the early years of practice. The consultation queried whether this was necessary, or indeed whether the requirement should be raised to five years or even more. The consultation suggested keeping the requirement to three years, but queried whether public access could be taken up earlier in a barrister’s career if training were provided on the Bar Vocational Course.

In order to take up public access work, barristers are provided with written guidance materials, and must also attend a one-day training course run by the College of Law. The course seeks to alert barristers to some of the duties they would need to take up in public access work that they would not encounter in more conventional practice: dealing with lay clients, discussing fees and storing documents and paperwork that would usually be kept by a solicitor.

Our consultation revealed that barristers generally liked the course, although many pointed to the Money Laundering Regulations as an area where further training was required. The working group has proposed that further guidance on money laundering and additional information on the limits of the scheme should be provided to barristers in the written guidance.

• Range of work

In accordance with the suggestions made in the Kentridge report, public access was not made available in family, immigration and most criminal cases. It was felt that these were areas where the assistance of a professional client was most desirable and the potential for the case to require a solicitor was greatest.

The consultation asked whether the range of available work should be widened to include all aspects of law. Responses varied: some felt that making public access available in family work would lessen the financial impact of using the courts on families, and more than one lay client has highlighted the capacity of public access to reduce costs in a case for the family as a whole.

Immigration work was originally left out of the scheme at the request of the Immigration Services Commissioner, who felt that such cases would involve considerable correspondence and paperwork, which risked pushing barristers into the role of solicitors in an area where the lay client was likely to find it particularly difficult to help run the case owing to the complexity of the proceedings and a possible inexperience in speaking English.

The prohibition on immigration work highlights a particular discrepancy in the scheme: public access is not available for immigration work, whilst less experienced non-barristers are able to appear at immigration tribunals as immigration consultants without a professional client to provide instructions. This has been criticised by some respondents to the consultations as penalising barristers by not permitting them to take on the work directly when they are actually better qualified to do so than non-barristers who are permitted to do so.

In answer to a detailed proposal made by one set of chambers regarding the use of public access in criminal work in the Magistrates’ Court, the working group has suggested that minor criminal work could be made available under the public access scheme where a custodial sentence is not an available sentencing option. This would permit a barrister to take on direct access a wide range of statutory offences.

Such work would constitute a fairly dramatic new step for the public access Bar. Views on this proposal were sought from the profession in the consultation, and it is clear that any widening of the range of work that is currently available will have to be taken with care.

• Correspondence between parties in public access cases

In order for a public access case to run smoothly, both the barrister and lay client must be aware that in public access work, the barrister does not take on the roles that barrister and solicitor would occupy in a conventionally-instructed case. The barrister’s role is limited, especially as far as correspondence and communication with the other side and the Court is concerned. The barrister is able to draft letters for the client to send, for instance, but may not send them in the barrister’s own name or on chambers’ headed paper. Self-employed barristers are unable to conduct litigation under paragraph 401(b)(ii) of the Code of Conduct: however, the case of Agassi [2005] ECWA Civ 1507 found that correspondence between the parties did not constitute litigation as such, thus permitting a degree of correspondence relating to case preparation and administrative matters between the parties in the case whilst continuing to rule out activities that would be classed as litigation.

This places public access barristers in a situation where their powers go beyond those of the non-public access Bar, but stops short of enabling them to conduct the case without assistance from the lay client. The consultation asked whether the Bar’s own restrictions on correspondence should be lifted.

Barristers have traditionally been prohibited from entering into correspondence on the grounds that they lack the resources to do this kind of work and are not trained to undertake it. A number of respondents, lay clients in particular, found this artificial and unnecessary: under the existing rules, a barrister could manage the correspondence in the case in all respects other than in name.

Responses to the consultations distinguished between correspondence among the parties and the formal conduct of the case, such as the issuing of papers to the Court. Almost all of the responses were in favour of enhancing the public access scheme: none wanted it to be ended or to have additional limitations. Some suggested that reform should be approached with care: in general, the Bar was more cautious than lay clients about widening the remit of the scheme.

As a result, the BSB working group has proposed that barristers should be permitted to undertake this work, provided that:

a) they have the necessary resources to do so properly;
b) they have insurance that covers all the work to be done; and
c) no client money, securities or other property is held by the barrister.

• Publicity and information for lay clients

Because of the greater role taken up by the lay client in a public access case, the conduct of a case can be greatly influenced by the lay client’s behaviour. Under the scheme, some functions of the case which would usually be carried out by a solicitor must be done by the lay client rather than by the barrister. Clearly it is essential that lay clients are made fully aware of their responsibilities in the case, and those of the barrister, if it is to be conducted effectively.

Guidance is provided for lay clients when they appoint a public access barrister. This seeks to explain what the barrister can do under the scheme, and to set out the roles of each of the parties in the case. A number of comments from lay clients and barristers suggested that the guidance needs to be clarified and to varying extents rewritten. Barristers have also suggested that the written guidance they receive when they start to accept public access work be improved.

Experience suggests that the scheme currently works best where the lay client has sufficient experience and resources to help the case run smoothly: for instance, in medium-to-large firms with previous experience of using lawyers, perhaps with their own in-house legal advisors who can prepare the case before passing it to the barrister. However, if the capacity of barristers to engage in correspondence is widened, less experience will be needed for clients of the scheme, as barristers could deal with more aspects of the case, potentially making the public access scheme better suited to a wider range of clients. It remains to be determined whether it is in the public interest to broaden the scope of the scheme in this way.

It was generally felt that there should be greater advertising of the public access scheme. Comments from barristers and lay clients alike suggested that there was insufficient awareness of the scheme’s existence among the public, let alone knowledge of what it could do. A general feeling was expressed that the scheme lacked visibility – not enough clients knew that it existed - and even where it was recognised as an option, its usefulness was restricted by a lack of understanding of how it could be used and where it would help the public most. At present, the scheme is publicised on the Bar Council’s website and through the Public Access Bar Association: the responses indicated that wider publicity would be in the public interest and would make the scheme more of a viable alternative to using the services of a solicitor.

Conclusion

Overall, it appears that the public access scheme has so far been a success. To judge from the consultation responses, many of the complaints and issues that have been raised regarding the working of the scheme could be resolved by broadening its scope, both in terms of the range of work covered and the powers granted to the barrister to conduct the case. However, this in itself has the potential to create new problems: how wide-ranging should the scheme be, and should it allow barristers to move closer to the kind of work that solicitors do? Furthermore, is it actually in the wider public interest that the public should be given increased capacity for direct access to barristers in this way? For example, there may well be circumstances in which it might support the interests of the client and the proper administration of justice more for an instructing solicitor also to be involved in the case than a barrister alone.

Any reform of the public access scheme will need to consider any new powers in the light of the BSB’s work on alternative business structures, to be introduced by the Legal Services Act 2007. The Legal Services Act promises to introduce a range of new business structures to the Bar, initially permitting legal disciplinary practices and, subsequently, a wider range of alternative business structures under the new Legal Services Board. Although the exact details of the implementation of the Legal Services Act are still to be finalised, there is possibility for such new forms of work to affect and overlap with the public access scheme.

It seems to the working group that the future of the public access scheme may well involve some form of widening its scope. However, any decision will have to be taken with considerable care to make sure that the service provided is both accessible and of high quality.

The group will report its findings to the BSB by the end of the year, and updates can be found on the BSB’s website at www.barstandardsboard.org.uk.

Christopher Gibson QC is a member of the Bar Standards Board’s Standards Committee and Chair of its Working Group on Public Access.