The Bar Council has slammed the Bar Standards Board’s (BSB) forthcoming continuing professional development (CPD) regime as being burdensome, complicated, unfit for purpose, and involving “pointless” self-assessment.
Making fundamental objections in response to a consultation on the rules and regulations of the new scheme – which comes into force in January 2017 – the Bar Council warned that it would lead to “many practitioners” being “likely to fail in their compliance” due to a failure to cope with “unnecessary formalities” imposed on barristers, not through a lack of professional competence.
The BSB ran into widespread opposition when it consulted on the scheme last summer. It ran a pilot scheme until March 2016, involving 76 barristers. A report on the pilot concluded participants had to better plan the learning objectives of a particular piece of CPD.
Similar to the scheme for solicitors coming into force in November, the BSB’s new regime represents a break with the past, replacing a prescribed number of hours of CPD with an outcomes-focused approach that makes barristers individually responsible for deciding the amount and type of CPD they should undertake.
The Bar Council contrasted the new scheme negatively with the existing scheme, despite the concerns raised during the 2015 consultation, saying: “We regret to say that it is evident that the new proposals will impose a much greater burden upon all barristers.”
It particularly objected to the notion that “self-assessment should form part of the CPD requirements”, saying “this is unnecessary to begin with, will be time-consuming for practitioners, and will often be completely pointless as the year’s practice changes”.
It added that the existing accreditations of CPD providers should be a sufficient guarantee of the quality of CPD events. Barristers would require “extensive and ongoing training” on the new scheme; without it “practitioners are far more likely to lapse in their compliance with unclear rules”.
The Bar Council objected to the idea that barristers should be expected to develop their practices, when many were “content” with the “practice niche” they occupied and simply needed to keep abreast of developments.
It also objected to the requirement that barristers submit a plan at the start of the CPD year, saying it was unrealistic. What was proposed was an “introspective (and time-intensive) series of steps that bear little relation to the requirements of busy practice” that would waste time.
The response continued: “It is unlikely that the typical barrister will stand any realistic chance of adhering to those targets, because the exigencies of practice will intervene. The barrister will therefore have wasted time both in setting out the targets and then in explaining how he or she was unable to meet them.”
The scheme also did not take sufficient account of the nature of practice at the employed Bar, said the Bar Council, many of whose members did not provide advocacy services or involve themselves in practice management, and often worked to “corporate or employment goals which may be quite inconsistent with those set out in the proposed rules”.
On whether the rules and regulations were appropriate, it said: “We do not think that the proposed new scheme is fit for purpose, and therefore we cannot agree that the proposed implementation is fit for purpose.”
Among other conclusions, the response ended: “The system is complicated, and so many practitioners are likely to fail in their compliance – not through lack of competence in their professional duties, but because of a failure to cope with the unnecessary formalities that the system seeks to impose.
“This will have implications for the amount of resource that the BSB need to allocate to investigations and will mean that barristers will potentially be penalised for not understanding a complicated system.”
The Bar Council provided a number of suggested amendments to the proposed new rules, although it cautioned that “while we have tried to give specific feedback about [the proposed scheme’s] implementation, we have struggled to find a way to ameliorate the concerns that we have.”