New proposals on the regulation of barristers in chambers will create uncertainty as to compliance and over who in chambers is responsible for meeting regulatory requirements, according to the Bar Council.
The Bar’s regulator, the Bar Standards Board, has published its response to the consultation on the regulation of barristers in chambers.
The Bar Council has welcomed some elements of the response where the BSB has listened to feedback, including decisions not to re-introduce a kitemark scheme for chambers or to progress proposals around the merger of small sets. The Bar Council is also supportive of the proposals to house all practice management rules on one section of the BSB website.
However, a number of significant problems remain. In particular, the Bar Council is concerned at the lack of clarity over what compliance looks like and where responsibility lies in the case of non-compliance - all members of a set or just those in leadership positions. Overall, the BSB’s regulatory expectations are set too high for the mostly self-employed practitioners that make up the Bar.
Commenting, Sam Townend KC, Chair of the Bar Council, said:
“We are pleased the BSB has listened to some of our feedback in terms of taking a graduated approach to supervision rather than reintroducing a kitemark scheme for chambers or reverting to the onerous regulatory return.
“However, our fundamental concern remains that a move towards outcomes-based regulation is not clear or proportionate for the Bar. It is, therefore, not appropriate for the mostly self-employed individuals who are required to comply. It could pose significant challenges for the Bar and may be ineffective.
“Further, we are concerned that the BSB proposals are unclear over who in chambers would hold responsibility for any non-compliance or enforcement activity. Is every member of a set to be held responsible or just those in leadership positions?
“Heads of chambers who take on these voluntary positions cannot - and should not - be held accountable for the failings of an individual barrister in their chambers.
“We are clear that the BSB does not have the power to regulate chambers as the regulated entity is the individual barrister, but these proposals muddy the waters.”
The BSB is proposing to consult further on two changes that were not included in the original consultation: a requirement for chambers to publish governance arrangements and the creation of a new register of chambers. The Bar Council encourages the BSB to set out a clear rationale for these changes and will be submitting a detailed response in due course.