The Bar Standards Board (BSB) is to push back against a Legal Services Board (LSB) demand that it implement a regulatory regime for immigration specialist barristers by the end of 2012, saying the LSB has failed to produce evidence it is necessary.
At the BSB’s monthly board meeting last week, the body approved in principle a draft letter to the LSB arguing that singling out immigration for special regulatory treatment is “premature and potentially disproportionate”.
An LSB discussion paper published earlier this year found “it is likely that there is significant, avoidable detriment to consumers and… the public interest” due to the way immigration work is regulated. It indicated the LSB may formally investigate making it a reserved activity.
The LSB took over oversight responsibility for lawyer’s immigration advice from the Office of the Immigration Services Commissioner (OISC) on 1 April 2011.
The LSB paper, which carries a deadline for responses of 24 May, said the frontline legal regulators – the BSB, the Solicitors Regulation Authority and ILEX Professional Standards – “have an inadequate understanding” of immigration advice services and do not know “whether lawyers are providing good-quality advice”.
As well as expressing concern at the “overlapping” regulation of immigration advisers – with the OISC regulating non-lawyers – the LSB highlighted the fact that while immigration lawyers providing legally aided advice are accredited, those who do privately funded immigration work are not.
The LSB required the frontline regulators to “implement coherent, evidence-based approaches to manage risks to consumers and the public interest in the provision of immigration advice and services” by the end of 2012.
The BSB’s draft response says: “Whilst the BSB recognises the need to assess the risks to clients in this area of practice, it believes that it would be premature (and potentially disproportionate) to require qualifying regulators to have implemented new systems by the end of the year, specific to the regulation of this area of practice, in the absence of clear evidence that this is necessary to protect clients and the public interest.”
Presenting the draft response to the BSB’s board meeting, Patricia Robertson QC acknowledged clients in immigration cases are often vulnerable, but said: “The LSB’s paper suggests that the frontline regulators don’t understand this particular area, but they don’t actually provide any evidence for what it is that we don’t understand and what the evidence is for concluding that we don’t understand. That is, for the moment, our starting point. “
She continued: “[The LSB] are asserting without providing any evidence that there is a regulatory problem. We are being told that we must take an evidence-based approach but where is [the LSB’s] evidence-based approach for deciding that this needs to be a priority area for us?
Many of the LSB’s concerns raised in its paper are being addressed by the BSB’s ongoing overhaul of its regulatory standards framework and changes to the barristers’ code of practice, Ms Robertson said. The case for a “separate, free-standing approach” to regulation “which is tailored… just for this particular area” is not proven, she went on.
In its draft response to the LSB, the BSB points out that last year the Bar’s biennial survey found just 4% of barristers offer immigration advice and only half as many do so as their main area of practice. Only eight complaints relating to immigration advice have been upheld against barristers in the past five years.
BSB chair Ruth Deech endorsed the draft, repeating her view that a single regulatory regime for barristers was the only viable option and questioned whether it was right to “pick out” immigration lawyers, especially since many of them were themselves from black and minority ethnic backgrounds. “I’ve said this in relation to will-writing – I simply cannot see how you regulate an immigration lawyer just in relation to immigration. If you are a barrister doing immigration that’s great, we regulate you. I just don’t see how you can do that in isolation.”
Ms Robertson said she could envisage a potential need in future for a quality assessment scheme of the kind being put in place in criminal advocacy, precipitated by the withdrawal of legal aid from immigration work. But research would first be needed to “gather the evidence base” to underpin such a move.