Fenhalls: Why are we paying for the regulation of unregistered barristers?
The Bar Council has expressed scepticism over a sharp planned rise in the Bar Standards Board’s (BSB) budget for the coming financial year, which would amount to a 9% increase in the cost of practising.
According to the budget consultation issued by the Bar Council, the intention is for half of the increase to be met by reserves, if the demand is ultimately approved by the Legal Services Board (LSB).
The proposed 4.5% increase in the practising certificate fee (PCF) would mean raising nearly £17m in 2022/23, of which just over 70% would be for the BSB, with the rest going to the Bar Council for certain purposes as permitted by the Legal Services Act 2007.
With other income, the proposed budget is £21.6m in total, a 10% increase on the current year, of which £14.5m would go to the BSB.
There are eight different income bands that determine the PCF barristers pay and the plan is to achieve the 4.5% rise through a combination of a 3% increase for all but the bottom band and splitting the three highest-earning bands.
This would mean that barristers earning over £1.5m would pay £3,270, compared to £100 for those earning less than £30,000.
In a highly unusual move, the Bar Council made it clear that the proposals were published under duress. “As the approved regulator, the [Bar Council] is obliged to put these proposals to you,” it said.
“In our submission to the LSB we will ask the LSB to examine the BSB’s budget and plan in more detail than we are permitted to do.”
It noted that the BSB was not meeting its performance targets but said there was “limited evidence” that the pressures the regulator was currently facing would persist.
“In the absence of such evidence, the Bar Council is not in a position to conclude that such a rapid and exceptional increase in staff numbers and recurrent costs is necessary and proportionate, given that it will require a significant increase in PCF.
“In order to allow the Bar Council to discharge its obligation to assure itself, on behalf of the profession, that an increase in resources is reasonable the Bar Council would have expected there to be a fully costed business case with consideration of other options and of work that could be stopped or delayed, to increase capacity.”
The main driver of the increased budget, the consultation said, came from the BSB and particularly its plan to recruit more staff to address the pressures the BSB faces. Taken with the current year, “this leads to an increase in full-time employees of some 30 posts over three years (an increase of 40%)”.
In his inaugural speech last week, incoming Bar Council chair Mark Fenhalls QC doubled down on the criticisms of the regulator.
He said: “It does not take much imagination to see that a profession burdened by the stresses and strains of the last few years might be less than enthusiastic about increases in regulatory costs unless there is a reasonable and objective justification.”
With a nod to the costs of the Legal Services Board and Legal Ombudsman too – whose costs come out of practising fees as well – he said the profession “might wish to ask questions” about whether or not the regulators were concentrating, “as they should be”, on their core responsibilities.
He continued: “Many might reasonably wonder why it is that, unique amongst the professions, we appear to be paying for the regulation of tens of thousands of unregistered people (growing at around 2,000 per year) who have never completed their professional training.
“The profession might also reasonably want to ensure that the regulator is not exploring ground that should properly remain within the domain of the representative body.”