The Legal Services Board’s (LSB) initial probe into the independent regulation of barristers uncovered “a number of concerns about the Bar Council’s and the Bar Standards Board’s behaviour at both junior and senior executive as well as board level”, it has emerged.
As a result, in June the LSB launched a formal investigation into whether the Bar Council interfered with controversial changes made by the Bar Standards Board (BSB) to the cab-rank rule to facilitate the new contractual terms between barristers and solicitors.
The changes were approved by the LSB.
Background papers newly released by the LSB said it was first alerted to a potential problem in March “when the Bar Council issued a statement to the effect that it had designed the new contractual terms to provide ‘appropriate protection to barristers’. It also stated that the Bar Council would be undertaking further work in relation to those terms, with the Law Society, to promote ‘our professional interest’”.
Although much of the key information is redacted, the papers reveal that the concerns about the behaviour of executives and board members resulted from information requested by the LSB under a statutory notice. A second notice followed, the response to which did not assuage the LSB’s concerns.
“The information shows that the Bar Council was deeply involved in the drafting of BSB board and committee papers as well as the rule change application to the LSB,” the papers said.
As a result the formal investigation has been launched and among the issues the LSB is considering are whether the Bar Council placed “significant legal risk on the BSB’s decision by acting as the author of a proposal on which it was one of a number of consultees” and whether there is evidence that the Bar Council was the “controlling mind” and determined the content of the application to the LSB, as well as processing its preparation.
“In particular, whose view prevailed in the event of disagreement over drafting or approach?”
Also, whether there was an attempt to deceive the LSB about the source of the rule change application – given that it had previously asked whether standard terms were actually a representative matter, rather than a regulatory one – is under the spotlight.
When the formal investigation was launched, the Bar Council said it strongly supported the principle of regulatory independence and denied that it had in any way undermined the BSB’s independence.