BSB hits back at SRA over independence concern

Bar: BSB protecting regulatory principles, not barristers

The Bar Standards Board (BSB) has rubbished a suggestion from the Solicitors Regulation Authority (SRA) that it changed a rule to support the Bar Council in its clash with the government over legal aid.

SRA executive director Samantha Barrass made the accusation following the BSB’s move last week to close a “regulatory anomaly” that would have temporarily seen barristers forced to accept the controversial new legal aid rates for very high-cost cases because of the cab-rank rule.

It came during a speech in which she argued against the call from the Law Society and Bar Council to return elements of regulation to the professional bodies.

Ms Barrass said: “Even within the current structure there are very powerful incentives, and a culture, of introducing rules claimed to be in the public interest simply for the self-interest of the profession.

“Last week, the BSB has moved rapidly to amend its regulations coincident with the Bar’s dispute with the government over legal aid. This entangling of modern public interest regulation with membership interests diverts our attention from the really important issues that we need to sort out.”

A BSB spokeswoman told Legal Futures: “It is wholly incorrect to state that the BSB moved to amend regulation in response to the Bar’s dispute with government.

“It is not the role of the regulator to define how much barristers get paid but it is our role to protect regulatory principles that are core to ensuring access to justice. If the BSB hadn’t acted quickly, the cab-rank rule would have been inadvertently undermined.

“The cab-rank rule was not designed to define acceptable remuneration; it exists to ensure that anyone can access a barrister no matter how unpalatable the case. It is right and proper that we acted to protect a principle that is central to the interests of clients and the proper administration of justice.”

Ms Barrass also referred to the findings of the Legal Services Board last week that the Bar Council breached the independence of the BSB by interfering in separate changes to the cab-rank rule. She said this illustrated “the serious dangers of entrusting public interest regulation to the professional bodies”.

At the time the BSB said that many of the adverse findings referred to matters “from some time ago”. It added: “We have already put in place measures to avoid a recurrence.”


    Readers Comments

  • Ian Dodd says:

    As a barrister can circumvent the obligations of the cab rank rule on the grounds that the fee offered is to low there might be those who would hold that it is disingenuous for the BSB to say, as above, ‘the cab rank rule was not designed to define acceptable remuneration’.

  • Patricia Robertson says:

    In the old days the Bar Council was both trade union and regulator and a corollary of that dual role was that it negotiated legal aid fees and then “deemed” them reasonable for the purpose of the cab rank rule. That overlap in function is inappropriate and the BSB has removed it. It’s not the BSB’s role as a regulator to fix prices – just as that is not the SRA’s role. The BSB, with LSB approval, had therefore already removed this from the cab rank rule in the new code which comes into effect in January (and had done so long before and quite separately from the current dispute between the BC and MoJ). By taking the position it has since taken on VHCCs the BSB has simply ensured that the position under the cab rank rule will remain the same as at today’s date as it was last month and will be in January. Inconsistency in the operation of a rule as a result of a wholly unintended change is in noone’s interests and would be bad regulatory practice. I have explained how this anomaly arose in more detail here The BSB has made its focus on the public interest abundantly clear and will be issuing further guidance:

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