The Bar Standards Board (BSB) has argued against extending the cab-rank rule to work where barristers are instructed directly, arguing that access to justice would not improve, it might discourage them from taking instructions from the public, and may lead to clients invoking the rule inappropriately.
The decision to maintain the status quo – the subject of a newly published consultation – followed a fundamental review of the rule, published in March, which warned that extending the rule to clients represented by more than 5,500 direct access barristers would be more likely to result in a barrier to access.
The March report said public access was “working well” but also raised questions over obstacles to the public contacting a barrister, whether barristers and clerks were properly prepared to manage the work, and whether some public access barristers were “providing a poor client service”.
While the cab-rank rule should not be extended, the BSB argued, rule C28 in the Handbook – requiring barristers not to discriminate across the board – should be made more prominent in the guidance applying to direct access barristers.
On the cab-rank rule, the BSB said it “recognised that there are arguments in theory for applying the cab-rank rule [to public access cases]” for reasons of improving access to justice and in the public interest, but believed it was unlikely that a client with a good case would go unrepresented, if necessary by instructing a solicitor – although it pledged to monitor evidence of consumer detriment.
It added that barristers might be “less inclined” to undertake public access work, so creating “a barrier to access”. In any case, there would still be an exception to the rule for lack of suitability.
Further, extending the rule could even “lead to clients attempting to invoke the rule when they are unsuitable for [public access] and/or their cases have little merit, and it may be in no one’s interest to proceed”.
Finally, there was a “residual risk” that “more instructions would be accepted inappropriately”.
In conclusion, the BSB said: “Our view is that the cab-rank rule already operates sufficiently in both the public interest and the interests of consumers.”
The consultation, which ends on 26 September, contains a number of other proposals to make the rules on public access more ‘outcomes focused’.
For example, it argued that the rule on barristers of under three years’ call having to maintain a public access log should be scrapped in favour of measures that would instead see all chambers – as the December 2016 Competition and Markets Authority (CMA) report also urged – “seeking and reflecting on client feedback”.
To this end, “the guidance on how to gather and make use of feedback should be revisited in light of the evidence which has emerged from the CMA’s report”.
The consultation also asks whether:
- the public access rules should require that barristers disclose the level of professional indemnity insurance they hold, so as to reassure the public;
- the rules should remove reference to the licensed access terms of work, published by the Bar Council;
- limits and conditions should be placed on public access licenses only in exceptional circumstances;
- to permit ‘licensed’ members of professional bodies – such as accountants and engineers – to instruct barristers directly for representation in the higher courts and Employment Appeal Tribunal, and to make it simpler for the BSB to alter the list of those bodies; and
- a rule change should “allow any client who would not be able to complain to the Legal Ombudsman to instruct any barrister directly i.e. without using the public or licensed access schemes”.
BSB director of strategy and policy, Ewen MacLeod, said: “Our review found that [public access works] well. The changes we are proposing in our consultation paper are therefore designed to improve the schemes by promoting access, ensuring that high standards of service are maintained and increasing flexibility.
“For example, by removing the list of professional bodies whose members can instruct barristers through the licensed access scheme from the rules, and publishing the list as guidance instead, we can more easily update the list of professionals who can instruct barristers under the scheme.”