Future Bar Training, disciplinary regulations, Alternative Business Structures and more…

 

The last few months have been an active period for the Bar Standards Board.

  • We have set out our vision for the future of Bar training
  • We have published our Business Plan for 2017-18;
  • We have launched a consultation as to whether we should change the standard of proof in disciplinary proceedings;
  • We have published a review of direct access; and
  • We have begun regulating Alternative Business Structures.

Future Bar Training and pupillage reform

In March, we announced our decisions on the Future of Bar Training following our extensive recent consultation. I should like to thank personally everyone who responded.

As always our starting point was the public interest. But throughout this process we have listened very carefully to the views of all, including members of the public. We paid particularly close attention to what we heard from the profession, from providers and from the judiciary. The views of the representative bodies, as well as those of individual members of the Bar, were vital to us in reaching our conclusions.

We have decided to authorise a strictly limited number of future training routes for prospective students to qualify as barristers and we agreed with those who argued that authorising too many routes would not be prudent. One of those routes is likely to be the one suggested by the Council of the Inns of Court and Bar Council which attracted such strong support in the consultation.

The next step in the process is to produce a detailed Authorisation Framework which will enable us to assess future formal proposals for training against our four criteria of:

  • flexibility (encouraging, for example, the options of part time study, distance learning and integration with paid work);
  • accessibility (offering support to students from under-represented groups);
  • affordability (improving the value for money of the present system); and
  • sustaining high standards (so that consumers can be certain that every barrister who begins practice has met the requirements of the Professional Statement of the competences expected of a barrister on day-one of practice).

Again we will want to involve all our stakeholders in the preparation of that Framework and at the time of writing we are organising a seminar to discuss our next steps. Thank you again for all your valuable input so far. We hope that you will continue to contribute to our discussions. Now that we have decided on the way forward, we want to see reform of Bar training as soon as possible.

As part of the BSB’s ongoing review of Bar training we are also now beginning a review of the role of the Inns of Court. The Legal Services Act defines a barrister as someone who has been called to the Bar by an Inn and has not been disbarred by order of an Inn. The BSB supports that position.

The process by which the Inns call individuals to the Bar is part of the regulatory arrangements of the General Council of the Bar as defined by the Act. So too are a number of other functions of the Inns including:

  • Applying the requirements for admission to an Inn;
  • Approving pupil supervisors, and providing pupil supervisor training;
  • Providing training courses during pupillage;
  • Providing “qualifying sessions” and waiving/modifying the requirements; and
  • Student discipline, including the Inns Conduct Committee.

Our new Authorisation Framework, which will assess Bar training against the principles of accessibility, affordability, flexibility and sustaining high standards, will apply to the role of the Inns and will need to describe (amongst other things) the role that the Inns will have in any requirements for qualification as a barrister.

We will be issuing a public consultation on a new set of rules in September but, before we do that, we have a statutory responsibility to ensure that any rules are desirable from the perspective of meeting our regulatory objectives under the Legal Services Act and that all regulatory arrangements involving the Inns continue to be both necessary and proportionate from a regulatory perspective.

The Inns are already reviewing their arrangements separately to see if there are any changes that need to be made. We will consult the Inns and the Bar Council closely throughout our review, but for any changes to take effect, we must decide to propose them independently, and the change must be approved by the Legal Services Board (LSB).

We have already begun our discussions with the Bar Council and the Inns.

Our Business Plan 2017-18

We published our 2017-18 Business Plan in March, setting out the key areas of work it will undertake in the new financial year.

As this will be the second annual plan to be published as part of our current three-year strategy, the focus within the plan is on continuing with the work already started. Priorities for 2017-18 include:

  • responding with the other legal regulators to the recent market study by the Competition and Markets Authority (CMA) into the supply of legal services in England and Wales;
  • beginning to implement Future Bar Training reforms;
  • continuing to implement recommendations to improve the experiences of young people who are the subject of proceedings in the Youth Courts, and the standards of advocacy that they receive; and
  • carrying out further modernisation of the disciplinary system for barristers, including consulting on changing the standard of proof used in disciplinary tribunals.

Our Business Plan describes our core regulatory activities and sets out our priorities for the year ahead. Over the last twelve months, we have made good progress against each of the strategic themes that we identified as part of our three-year strategy. But we recognise that further work is needed in 2017-18 and that what we need to do is becoming ever more complex. Despite this, thanks to even greater efficiency in our operations, we are pleased to confirm that our expenditure for the year ahead is budgeted to be the same as last year.

Standard of Proof

In May, we launched a new consultation about the standard of proof used in professional misconduct proceedings. Currently, we use the criminal standard, but we are seeking views as to whether the time has come to change our regulatory arrangements to apply the civil standard.

Switching to the civil standard would bring the Bar’s disciplinary arrangements in line with those of most other professions.

We are seeking the views of the profession, but as with all our consultations, where we are judging what would be in the best public interest, we are also seeking views from those outside the profession including consumers of legal services, as well as bodies and individuals involved in other regulatory disciplinary systems.

The consultation, which closes on 21 July, also asks for views on whether changing the standard of proof would create adverse impacts for any of the protected characteristics under the Equality Act 2010.

You can read our consultation paper on our website.

Review on public and licensed access

The Bar Standards Board (BSB) published the results of a review into the Public and Licensed Access schemes in March. These schemes allow members of the public and other lay clients to instruct barristers directly without first instructing a solicitor or other intermediary.

The regulator’s review concluded that both schemes are operating well, and are an important way for the public to access legal services.

The review also found that most Public Access barristers are providing a valuable service to their clients. However, it identified three issues that the regulator should address to improve the Public Access scheme:

  1. There are barriers that are making some consumers unable or unwilling to access a Public Access provider;
  2. Barristers and clerks may not have enough support or may be inadequately prepared to manage Public Access work; and
  3. Some Public Access barristers may be providing a poor client service.

The Bar Standards Board (BSB) will soon publish a new consultation on potential changes to the rules governing the Public and Licensed Access schemes for barristers to address these issues.

You can read the review here.

Alternative Business Structures

The last couple of months have also seen us begin to license Alternative Business Structures (ABSs). This development should encourage further innovation in the provision of legal services. As the regulator for advocacy-based services, we hope that any barristers considering teaming-up with non-lawyers to form an ABS will consider us as the natural choice for authorisation. We look forward to helping the profession drive innovation and competition in the legal marketplace.

Our website

Lastly, we are keen to improve our website and we would like our users to complete a short online survey which can be found on the home page. Please share your thoughts with us. https://www.surveymonkey.co.uk/r/C2GQGK9

Sir Andrew Burns, Chair of the Bar Standards Board

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