Of the many responses to the legal aid green paper sent to me in the last few days (and why do people always wait until the consultation closing date to finalise their papers?), by far the most surprising was that from the Bar Standards Board (BSB). I simply wasn’t expecting one of the approved regulators to get involved.
The BSB said the cuts to legal aid “will have no discernable positive regulatory impact and do little to protect and promote the public interest”.
The response was careful to focus on the regulatory objectives that govern the legal market, as set out in section 1 of the Legal Services Act 2007. So the BSB raised concerns about the detrimental effect the cuts could have on the diversity of the legal profession, access to justice, increasing the public understanding of and capacity to exercise their legal rights, and access to and the quality of expert witnesses in court cases. These echo the worries of many others, including the Bar Council, which also released its response yesterday.
Further, with the proposed increase of advice gateways, the BSB warned against the possible provision of unlawful advice by telephone advisers.
BSB chairwoman Baroness Ruth Deech said: “The Bar Standards Board is committed to protecting the public interest and is alarmed that these proposals will disproportionately affect the most vulnerable consumers at a time when they need the most protection. We are deeply concerned that the proposals for legal aid reform do nothing to enhance the regulatory objectives and have made this clear in our response.”
Two issues arise. First, should the regulator of barristers be dipping its toe into this highly controversial and political area? It certainly seems unusual, but I guess if it feels its regulated community will be affected, then fair enough. Here, however, it is also speaking for the broader public interest and its intervention does feel a little awkward.
Second, the BSB needs to be careful about looking like the provisional wing of the Bar Council. I have heard rumblings of discontent about this. Take another part of the speech by Consumer Focus deputy chief executive Philip Cullum that I reported last week.
Mr Cullum made disapproving mention of Lord Neuberger’s warning about “consumer fundamentalism” to last year’s Bar conference, continuing: “Even more remarkably, this was then cited approvingly by the chair of the Bar Standards Board, who has also spoken of the Legal Services Act as ‘a hidden plot to crush the Bar out of all recognition’, said that ‘the Bar will continue to be what it always has been’ and declared that ‘the BSB has to guard the identity of the Bar and its future’. We deal with a lot of regulators in different sectors. This isn’t the way the chief executive or chair of Ofgem says about the energy industry, or Ofwat about the water sector.”
There is nothing wrong with the regulator and representative body working in harmony – quite the opposite, in fact, and apart from the Law Society/Solicitors Regulation Authority, they all seem to do just that. From the relatively superficial view of sitting in on the open part of BSB board meetings, I have no reason to think that the BSB is anything but robust in its relationship with the Bar Council when it needs to be.
But the BSB nonetheless has to be careful that this isn’t seen as too willing to take the side of those it regulates. That was why the BSB (and SRA and the rest) were created in the first place. It could be a very damaging perception.