Rule out notion of costly, one-size-fits-all super-regulator, says Bar Council Chairman

25 November 2014

Bar Chief welcomes change in tone from LSB's new leadership

Constantly changing the regulatory regime for legal services is costly and lawyers need time to let the current regime bed in, the Bar Council chairman has said in a speech to regulators and prominent members of the legal sector.

The Bar Council chairman, Nicholas Lavender QC, addressing a cross-section from the legal community at the Old Hall in Lincoln's Inn, warned of the risks of any plan to introduce a new super-quango as a single regulator for the legal profession. He said that it would be "the last thing we need in this country." The Bar Council chairman also pointed to the risk of a super-quango failing to understand the differences within the world of law and trying to impose a one-size-fits-all concept of regulation.

He said that now was the wrong time to start trying to change the way lawyers are regulated, as the Legal Services Act 2007 and the regulatory regime it introduced are still in their infancy.

In his speech, which he declared were his personal views, Nicholas Lavender QC said: "The Act is still very new.  It only came into force six years ago.  One would not expect everyone to get everything right in these first years of a new regulatory system under a new Act.  Mistakes will be made.  More fundamentally, it was bound to take time for the relevant parties to settle into the new roles accorded to them by the Act and to work out their proper relationships with one another.  That is what we have all been doing since 2007, and we are getting the hang of how to make the new regulatory arrangements work. 

"A number of key personnel have changed or are about to change. Within the space of eight months, starting in May this year, the LSB (Legal Services Board), the BSB (Bar Standards Board) and the SRA (Solicitors Regulation Authority) will all have acquired new chairmen, and the LSB is to acquire a new chief executive. 

"I have already had a number of meetings with Sir Michael Pitt.  The fresh and open approach displayed in the speech which he made in September was a welcome change from the very different tone of his predecessor's speech in April. I am sure that his arrival will signal a more cooperative and productive relationship between our two organisations, and I hope that he will read my comments about the LSB's first six  years in that light.

"It would be good if these new leaders had the opportunity to get on with their jobs and to make the present system work without being distracted by the armchair legislators and endless debates about what a different Act might look like."

Super-quango

Responding to calls for a move towards an overarching super-regulator for the whole profession, Nicholas Lavender QC warned of the risks to the impact on the success of the UK's legal sector. He said: "The last thing we need in this country, and certainly in the legal profession, is more or bigger quangos.  I trust that no-one in this room would consider it appropriate for lawyers to be regulated directly by a Government Minister. 

"Likewise it would be unsatisfactory for lawyers to be regulated by a Government Minister's agents or appointees. So that is another reason why it would be an inappropriate and retrograde step to set up an new quango, or series of quangos, to regulate, say advocates, and litigators, and conveyancers, and what have you. And establishing a super-quango, with the attendant bureaucracy, would be a backwards step because it would be likely to lead to regulation which was both more expensive and of poorer quality.

"We need a regulatory system which respects the independence of lawyers and of the legal professions.  One of the important safeguards of the rule of law is the existence of an independent legal profession or professions."

Innovation and enterprise at the Bar

Nicholas Lavender QC pointed to the successes of the Bar in England & Wales, warning that an overbearing regulatory regime could hinder that success. He said that thousands of barristers have undertaken the training necessary to enable them to provide their services direct to the public and noted that the Bar Council has supported these initiatives through the creation of BARCO, the escrow account scheme, which overseas jurisdictions are now interested in copying.

Acknowledging innovation at the Bar, the Bar Council chairman also said that barristers had been offering "unbundled" legal services for many years when instructed by solicitors and that now they are able to do it, and are doing it, for individuals who find themselves caught up in litigation. He also applauded the Bar's overseas value, which has grown in recent years. He said: "Overseas clients now account for about one-eighth of the profession's total income.  Enterprising sets of chambers are establishing more and more annexes overseas, most recently in Singapore, to give but one example." 

Nicholas Lavender QC drew attention to the 2013 Organisation for Economic Co-operation and Development analysis of lawyers' regulatory regimes in different countries, which gave the UK the best score out of 45 countries, on the basis that the UK profession was much more open to competition than countries such as Germany and France.

Different styles of regulation

The Bar Council chairman pointed to the problems with moves towards entity-based regulation in his speech, singling out advocacy as one area where such an approach wouldn't work. He said: "This is not an expression which is used in the Legal Services Act, let alone something which is required by that Act.  It is not a necessary feature of our regulatory landscape at all.  It is simply a fashionable idea amongst regulators.

"I believe that advocacy is different from other legal services. Whatever the legal context, advocacy is a very different type of activity from what most lawyers do most of the time. And this is a concern. It seems that there are around 150,000 practising lawyers in England and Wales.  But only about fifteen and a half thousand of them are barristers.  So we account for only about 10% of practising lawyers. And there is an obvious risk that, as regulating the majority of lawyers takes up the majority of regulatory time and effort, the particular circumstances of the Bar can be overlooked or misunderstood."

The Chairman's full speech can be viewed here.

 
                                                                       ENDS

Notes to Editors

1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

2. The  Bar Council represents barristers in England and Wales. It promotes:

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board