The Bar Standards Board has moved to close a “regulatory anomaly” that would have temporarily seen barristers forced to accept the controversial new legal aid rates set by the government for very high-cost cases (VHCCs).
It said the move was necessary because the Ministry of Justice has laid down secondary legislation which could mean that the fees for VHCCs would for the first time be subject to the ‘deeming’ provision in the cab-rank rule.
This means that legal aid rates, subject to two exceptions, are deemed to be “a proper professional fee” and barristers cannot refuse instructions on that basis.
With the bar seemingly united in its opposition to government cuts to VHCC fees, which come into force on 2 December, the BSB said the deeming provision was never intended to apply to VHCCs.
However, there was a problem because the new BSB Handbook, which abolishes the concept of deeming, does not go live until 6 January 2014.
The new handbook will leave it to individual barristers to judge whether they can reasonably decline to accept instructions in legally aided work in all the circumstances, including where they are not being offered what they consider a proper fee.
In a submission earlier this month to the House of Lords committee scrutinising the secondary legislation, the BSB said: “Whether by accident or design, the appearance the timing of the SI creates is one of the government seeking to exploit this brief window of a month to force acceptance of reduced fees by using a professional conduct rule in a way that was never intended.”
As a result, the BSB said yesterday that “the right way to preserve the status quo and avoid an unintended regulatory change during that short interim period is to issue a policy statement to the effect that the deeming provision in rule 604 will not be treated by the BSB as becoming applicable to VHCCs during this brief interim period.
“The effect of this is, in substance, to bring forward the regime in the new Handbook under which it is the responsibility of individual barristers to make their own, reasonable, judgments as to whether or not a fee is a proper fee, for the purposes of the cab rank rule, rather than there being a difference of treatment, in this respect, between privately funded and publicly funded cases.”
BSB director Dr Vanessa Davies said: “As a regulator, it is not for us to have a view about how much barristers should be paid, which is why the deeming provision was removed from the new code altogether. Ensuring consistency of our regulatory arrangements, which have been carefully drafted and consulted on, protects the consumer as well as the barrister.
“It’s confusing for a rule to change its meaning for one month or so, so we have acted to ensure consistency and clarity about what the public can expect from the Bar.”
The BSB said it is also “urgently considering” revised guidance on the rules relating to withdrawal of instructions in relation to other legal aid cases where the fees are cut and, unlike in relation to VHCCs, there are no transitional provisions. This would “clarify the relationship of those rules to the rules defining a barrister’s obligations to the client and the court”.
The BSB policy statement can be found here.