Wales: The land of plenty for the Bar?

6 August 2015

Procurement opportunities for barristers in England and Wales

                              Karen Squibb-Williams

                        Karen Squibb-Williams, Head of Acorn Chambers

Opportunities for barristers to tender for work in Wales are on the horizon with the news that the National Procurement Service (NPS) for Wales will very shortly be issuing an Invitation to Tender exercise to establish a Legal Services by Barristers Framework Agreement, for use by all Welsh Public Sector Organisations (PSOs). With the opportunities to secure these contracts extending beyond the Welsh border to barristers in England, Karen Squibb-Williams, head of Acorn Chambers, explains what's involved for those barristers considering bidding for work for the first time. 

The National Procurement Service (NPS) for Wales will very shortly be issuing an Invitation to Tender exercise to establish a Legal Services by Barristers Framework Agreement, for use by all Welsh Public Sector Organisations (PSOs).  

Awareness raising events have been held in South Wales and London for those barristers and Chambers expressing an interest in this programme. The NPS has arranged to hold further events in North Wales, with future dates dependant on levels of interest. It is of course important that the whole bar is aware of all business opportunities available, though it is likely this development will be of particular interest to Welsh practitioners. 

As part of the national commitment to ensuring that all services provided to the Public Sector in Wales are of the highest quality, at fair and cost effective rates, the Welsh Public Sector has authorised the NPS to take forward their procurement strategy. The events hosted so far have set out the NPS principles and programme details, giving an insight into the type of work that the PSOs across Wales will be seeking from the bar and importantly, how barristers and chambers can effectively engage with the forthcoming Invitation to Tender. 

Practitioners and Senior Clerks who have already attended are aware that across Wales PSOs are looking to tender for some 20 different fields of law, covering Administrative, Employment, Charity, Planning, Police, Mental Health, to name a few. 

Inevitably this procurement programme will involve some new processes for engagement with barristers and chambers; the NPS hosts these events to ensure the bar has proper access to information about submitting tenders in a manner that will maximise business development whilst preserving current regulatory compliance and appropriate professional insurance provision. 

It has been clear for a number of years that the bar has to continue undergoing many changes in the way they provide their services. Whilst the majority of self-employed barristers clearly excel in providing the highest standards of legal advice and advocacy, many of them, understandably, do not have comparable levels of experience of engaging in the business world, particularly the procurement aspects of commercial relationships. A major strength of rolling out the ITT on the basis described above is that the Welsh Bar in particular, have the opportunity of: 

a)      Being amongst the first tranche of the profession (in the UK) to engage in a procurement process in a fully supported, and well established manner; 

b)      Securing contracts with Clients (PSOs) that facilitate a more stable and structured business plan going forward; 

c)      Demonstrating professional confidence by participation in the rigorous peer review and quality management platform that a developed procurement process operates from; 

d)     Access to an automated prompt and efficient payment system; 

e)      Familiarising themselves on a local basis with procurement practices could enable participation in other procurement opportunities further afield, domestically and across Europe, if desired. 

In addition to working with the Welsh Public Sector to help inform their procurement strategy, the NPS have also been working with an independent legal adviser Karen Squibb-Williams[1] (Head of Acorn Chambers, Oxford). 

As part of her initial observations of the intended procurement strategy, she commented that; 

"In early 2014, the Bar Standards Board (BSB) issued the new Handbook setting out the current regulatory requirements of all barristers, practising and non-practising; the second edition was published a couple of months ago and can be accessed on the BSB website:  

It is fundamental that the services of barristers are procured in a manner that recognises the professional obligations governing practice at the Bar, partly to ensure that the appropriate professional insurance cover remains applicable and partly to ensure effective quality assurance mechanisms are available. The nature and scope of regulation of barristers has changed significantly over the last decade from a self-regulating profession to one that is subject to the independent scrutiny of the BSB. This has led to a range of clearer distinctions to be made between the obligations and structures of Chambers, and the delivery of legal services by the self-employed bar. This inevitably impacts on how contracting for the provision of ongoing legal services can be procured." 

In rolling out procurement processes for securing legal services for PSO's across Wales, the early plan was to invite barristers' Chambers to tender for panel membership of the Legal Services framework for Wales. This approach mirrored that which was already under way for the provision of solicitors' services, (ie; firms of solicitors) and in fact reflected many of the existing 'regional' contractual arrangements that had been in place between Local Authorities and Chambers for some years. 

Two fundamental problems emerged from this approach; 

1)      Chambers are not a body that is capable of forming a contract; this is because they are not considered to be an entity comprising a group of sole of traders, or a partnership, (unless they are one of the small numbers of Chambers which has  recently incorporated under the extended powers of the BSB). Thus any 'contract' with Chambers to providereserved legal servicesis unenforceable; in turn this means that there is no legal remedy for breach of the contract and that there is an unacceptable lacuna in the professional indemnity cover that each barrister is obliged to provide when performing reserved legal services. 

2)      Generally the Head of Chambers is the employer of the clerks (and in some cases further administrative staff), but that 'model' cannot contract on behalf of its' barrister members to provide legal services. Indeed, under such a contract there would be insufficient regulatory responsibility and potentially, matters conducted therein could well be uninsured, leaving liability for any breach by the barrister, with the Clients (PSO's) and / or the NPS. 

Thus, whilst the model of 'contracting' referred to above has worked well in most areas, it is (has been) in fact an informal arrangement that is not capable of compliance with the present law of procurement and leaves unacceptable gaps in the relationship between Clients (PSOs) and legal service providers (barristers). 

To ensure that appropriate professional responsibility and accountability is enshrined within the final contractual arrangements of those barristers appointed to the framework panel, each barrister must respond to the ITT in their own capacity, and clerks in Chambers cannot do it on their behalf. This is not to say that Chambers / clerks cannot assist significantly in the preparation of individual barrister's responses including, where desired, the provision of assistance in the completion of responses to scenario questions, costings and the administration of the barrister's submission itself. What is essential is that each barrister personally signs off their own application. 

This environment has been described as akin to a tri-partite contractual arrangement, and in practice, this is what it will be in most situations, as clerks / Chambers are clearly keen to promote their services and the particular knowledge base offered by their administrative support to members of Chambers. However, obtaining a place on the Framework must be a fair and open process and available to all barristers including those who are not members of Chambers (such as sole practitioners) and those who are qualified to offer Direct Public Access and may or may not choose to undertake such work via their Chambers. 

Whilst of course this approach will initially lead to a much larger administrative burden on all involved, it will ensure the proper conduct of the provision of legal services between clients and providers in the longer term. A useful precedent in support of this model is illustrated by the Crown Prosecution Service (CPS) system for appointing external Counsel, particularly those who wish to be instructed to undertake prosecutions for rape and serious sexual offences on their behalf. Another model to consider is the appointment by government of Treasury Counsel; in simple terms, Treasury Counsel are appointed to the Attorney General's panel on the basis of each practitioner's personal merit, not on the basis of the Chambers from which they operate. 

These necessary changes in approach also represent a significant change in practice for all involved and will continue to necessitate some sensitive change management skills in the initial stages. The benefits are that ultimate panel membership will be on a meaningful contractual basis wherein the provision of legal services is capable of appropriate, accountable quality management through regulatory compliance and effective indemnity arrangements - for the clients (PSOs); and for barristers, the new structure will provide greater predictability and volume of work, significant growth opportunities and swifter payment! 

To register your interest and to be informed of upcoming events, contact Paul Griffiths of the NPS

Karen Squibb-Williams 
Head of Acorn Chambers

[1] Karen holds dual practising status and, after a 12 year career at Crown Prosecution Service (CPS) Headquarters, in 2013 she established Acorn Chambers.  Karen sits on a number of Boards and was an elected member of the General Council of the Bar 2002 - 2009. She served on a wide range of committees, including the former Professional Conduct Committee of the Bar Council. 

Karen was also the CJS strategic legal adviser on the Home Office National Procurement Board for forensic sciences 2007 - 2013, so she should be able to help with any particular professional queries you may have.