The deadline for response to the current BSB consultation on widening the scope of Public Access is this Friday (9th March) at 5pm (responses to be emailed to firstname.lastname@example.org). It’s a potential biggie, and all barristers (and solicitors) should have a quick shufty at it and consider whether to put in a response.
For me, there’s no argument. Of course any barrister should be able to do it, and in cases in any area of law. One thing that is not covered (for fairly obvious reasons) is whether barristers should be permitted to conduct litigation and I’ve set out the reasons why they should.
Anyway. I’m blogging about it to allow anyone to read my response and trash it or copy parts of it as the case may be… I’ll set up some sort of googledocs account in future, but below is my response in full.
Public Access Scheme – Response to consultation
This is a response to the document from the BSB dated 1st December 2011 asking for comments on the amendments to the Public Access Rules, following the ‘mini-consultation’ from July last year.
I am a barrister who is both self-employed and employed. My work is approximately 90% criminal and 10% immigration. In Chambers, I am qualified to undertake public access work. This is written in my personal capacity and not on behalf of chambers or the firm.
As an overview, it seems to me clear that in relation to the existing r3(1), there is no justification for restricting public access in the way that it currently operates. Especially in criminal cases (for the reasons stated in para 5 of the previous consultation) where many people who have earning or savings that mean they would clearly have a nil contribution, and would not rationally choose to use legal aid, are deprived of the opportunity of going to a barrister directly. Consequentially they will have to use a solicitor which will greatly increase costs.
Consideration of competition law is not specifically included in the regulatory objectives, but it seems to me to be worth considering that. I assume that the OFT have been notified of this consultation. I would endorse what they have been saying for the last ten years that restrictions on the possibility of barristers taking instructions directly are anti-competitive.
In relation to widening the number of barristers who can undertake public access, it is hard to see how relaxation of the rules on public access can have anything other than a positive impact. It does not in any way narrow the choice for consumers and, in fact, clearly has the opposite effect. In relation to barristers, again it seems that this will only have a positive effect. The more ways that barristers can offer their services, the better impact on equality. I cannot see how it is likely to have any differential impact.
One area that has not been addressed is whether the Bar Standards Board should authorise barristers (both in relation to public access and generally) to conduct litigation. Parliament has confirmed since at least the Access to Justice Act 1999 that the Bar Council (at that time) are approved regulators to authorise barristers to conduct litigation. This has been re-enacted in the Legal Services Act 2007.
I could not phrase it better than the OFT did in the report mentioned above, and in their Progress Statement from April 2002 dealing with ‘Competition in Professions’:
“3.23 We welcome both these developments. It will be important to ensure that the revised rules contain no unnecessary limitations on the freedom of barristers to accept instructions directly from clients, and the freedom of clients to engage the services of a barrister without intervention by a solicitor. We note also, however, that the practical effect of the amendment is likely to be limited to the extent that barristers in independent practice are not granted rights to conduct litigation (see below at paragraph 3.25)
3.25 In the Bar response, the Bar clariﬁes that it does not intend to lift the prohibition on the conduct of litigation by barristers in independent practice. Litigation services include collecting evidence, carrying on correspondence and dealing with disclosure of documents. In our report, we stated that we considered that this prohibition prevents potential efficiencies, restricts freedom of choice, and limits the number of lawyers available to conduct litigation. We underline that OFT does not seek to oblige any individual barrister to conduct litigation. Section 40 of the Access to Justice Act expressly empowers the Bar Council to lift the prohibition, but at present, the Bar dictates that in no circumstances can any member of the independent Bar conduct litigation. In our view, such a rule restricts the freedom of choice of barristers and of their clients.”
See also the commentary at paras 3.27-3.30. Since then, of course, some many of the other restrictions have been lifted and this should be done as a matter of urgency (I appreciate that the consultation on Handbook and Entity Regulation addresses this).
It must be clear that this would not require barristers to conduct litigation, but merely provides that they are permitted to. Again, such a step would be entirely consistent with the intention of Parliament and would enhance the regulatory objectives. It is unfortunate that it was not included within the scope of the consultation.
In relation to the questions raised in the paper:
Q1 Our provisional view is that the prohibition in rule 3(1) should be relaxed. However, we would be interested to receive views from anyone who did not have a chance to respond to the previous mini-consultation. Do you agree that rule 3(1) should be deleted?
Yes for the reasons that you state.
Q2 Do you agree with the proposed amendments to rules 2 and 3?
Q3 Are any further safeguards (in addition to the amendments to the model client care letter and the guidance) required to protect the public?
Q4 Do you agree that there are adequate public protection safeguards in the existing Code and training requirements?
Yes. Although I have concerns as to the extent to which the training that is provided sufficiently tackles the problems that can arise.
Q5 What further measures could be taken to protect the public?
Q6 Do you agree that the public access guidance for barristers and clerks should be amended to make it clear that rule 603(a)is not restricted to legal and procedural knowledge only, but also includes the ability to competently manage clients (particularly vulnerable clients who may have mental health or language difficulties)? See Annexes 4 and 5.
Q7 Do you agree that there are adequate supervision requirements already in the Code?
Q8 What further supervision requirements could be adopted?
None should be adopted.
Q9 Do you agree that there is nothing in the complaints data that raises concerns about relaxing the rule?
Q10 Do you agree that it would be in the public interest to allow barristers with less than three years experience to act via public access in criminal cases?
Yes. There are clearly many cases that are ideally suited for such barristers to undertake on a public access basis. The requirement for a solicitor to be involved in many such cases merely adds to costs and a duplication of work.
Q11 Do you agree that it is in the public interest for barristers with less than three years experience to accept public access instructions in cases similar to those described above?
Q12 Do you agree that barristers with less than three years’ practising experience should be able to conduct straightforward civil matters (particularly fast track trials and basic advice)?
Q13 Do you agree with the analysis of the regulatory objectives?
Q14 Are there any additional points which are likely to enhance or adversely affect the regulatory objectives?
Yes. Barristers should be permitted to conduct litigation (see above).
Q15 Do you agreed that the three years practising experience requirement should be removed?
Yes (see question 8).
Q16 Should second six pupils be permitted to accept public access instructions?
Yes. A second six pupil will be subject to a much higher level of supervision than a junior tenant due to the requirements on their pupil supervisor to supervise them. For that reason, there are fewer dangers with a second six pupil accepting public access instructions.
The requirement to not undertake work above his or her ability is a sufficient safeguard.
In practice nowadays, given the funding cuts in criminal legal aid, in many cases the amount of work that a solicitor may be able to do on some cases is negligible.
Q17 Do you agree that the above will assist in obtaining information symmetry between the barrister and client? Are there any other steps that could be taken to better inform the client’s position?
Yes. No further steps necessary.
Q18 Do you agree with the proposed amendments to the guidance and the model client care letters?
Q19 Are any of the proposals likely to have a greater positive or negative effect on some groups compared to other? If so, how could this be mitigated?
Q20 Are there any negative impacts that have not been identified in the provisional equality
Yes. Conduct of litigation should be addressed.