The new chair of the Bar Council has pushed back at the idea floated by the Bar Standards Board (BSB) that chambers could merge to make regulatory compliance easier.
Sam Townend KC also said that Bar students who have “no intention” of practising in England and Wales could be offered “an alternative form of membership” by the inns of court, if it was decided to delay the point at which they were called to the Bar.
The BSB said in a consultation last year that one answer to the problem of regulatory compliance for smaller chambers was “voluntary consolidation”.
Giving his inaugural speech as chair at Lincoln’s Inn on Monday, Mr Townend described promoting voluntary merger of chambers for compliance reasons as “putting the cart before the horse”.
He said there were “many barrister sole practitioners” and “140 or so chambers” with fewer than 25 members.
“While the paper rightly identifies that it would not be appropriate to graduate regulatory obligations on chambers according to size, the very suggestion of mergers of chambers for regulatory compliance reasons indicates that the BSB’s expectations of the necessary level of regulatory compliance activity is pitched too high.
“It must not be forgotten that under the 2007 [Legal Services] Act, individual barristers are the regulated person, not sets of chambers.
“I would urge the BSB not to pile on yet more ‘before the event’ compliance obligations upon all, but to concentrate on minimum standards setting and policing actual misconduct.”
Mr Townend said that now the BSB has “turned the corner” on performance, it should “bear down in its costs to the profession”, which have reached £684 per barrister compared to £436 per solicitor.
The BSB’s spending had increased by 64% over the last six years, more than double the inflation rate in “very difficult times” for parts of the Bar.
As performance and productivity improved, “I hope we can look to reductions in the regulatory cost to the Bar similar in pace to the rate which it went up”.
Mr Townend said his focus, in terms of the Legal Services Board (LSB), would be on the oversight regulator’s review of its internal governance rules, which govern the relationship between the Bar Council and BSB, and the other legal bodies with similar splits.
He said the current version of the rules, published in 2019, did not “properly reflect the compromise of semi-independent regulation of the legal professions” found in the Act.
“The current rules render the semi-independence settlement built into the statutory scheme unworkable. The Bar Council would, therefore, like to see the rules restored to the more balanced and practicable position contained in earlier iterations.”
Mr Townend followed his predecessor, Nick Vineall KC, in arguing strongly for the point at which Bar students are called to the Bar to be postponed until they have secured or completed a pupillage in England and Wales.
Mr Townend said he had not heard “serious challenge” to the “positive arguments” for change. He said this would help diversity and social mobility.
Responding to the argument that a “wide call enhances the soft power of the Bar internationally”, particularly in Commonwealth countries, he said that on recent trip to India, “seeking liberalisation” of that market, he saw “no signs of such sentimental effects”.
Of “far greater significance” in terms of the soft power of the English and Welsh justice system, was the “excellence” of the judiciary.
“In any event, if there is a soft power benefit, there is nothing preventing the inns from introducing an alternative form of membership for those who have no intention of practice at the Bar of England and Wales, and one not freighted with regulatory requirements and cost to the rest of us.”
The debate also comes against the backdrop of the BSB struggling to cope with a surge in lawyers from the Indian sub-continent looking to requalify in England and Wales, even though it is believed that few intend actually to practise here.