The new chair of the Bar Council has called on the Ministry of Justice (MoJ) to review the Legal Services Board (LSB), prompting a tart response from the oversight regulator.
Nick Vineall KC also questioned why people were called to the Bar before they had completed their training and were entitled to practise as barristers.
In his inaugural speech at Middle Temple last night, Mr Vineall said there was a “serious and important debate to be had” about whether or not it was the LSB’s job to develop a strategy for the whole sector.
He said the LSB used to be subject to triennial reviews by the MoJ, followed by ‘tailored reviews’, but the last of these was in July 2017.
“That was before the LSB decided that its role was to develop an overarching strategy for the entire legal services sector, both regulated and unregulated. Nothing in the last review suggested it ought to be doing that.”
He said a review of the LSB would be “particularly timely” as its new chair was about to be announced and “would allow the LSB under its new leadership to be confident that it was setting off in the right direction”.
On the issue of when barristers are called to the Bar, Mr Vineall said the solicitors’ profession conferred the title of solicitor only when training was complete.
“Is it right that the title of barrister is conferred – for life – before a person ever becomes entitled to practise as a barrister?
“If we decided to regulate window cleaning, would it be sensible to have a large number of people who were entitled to call themselves window cleaners but who weren’t entitled to clean windows?
“The present position with the title barrister is certainly confusing to the public, and the present arrangements are a major contributory factor to the fact that 17,000 practising barristers have to pay for the regulation of 70,000 barristers.”
Mr Vineall said he welcomed the fact that the Inns of Court were looking at the question of when call should take place.
On the Bar Standards Board (BSB) – which is suffering from significant performance problems – Mr Vineall said the Bar Council had “no present plan” to follow the lead of the Chartered Institute of Legal Executives (CILEX) and look for a new regulator to replace it.
However, the Bar Council needed to take a “close interest” in the performance of the BSB, which, “for the second year running, is failing to come close to meeting its targets for key performance indicators”.
He said “partial explanations” that it was difficult to recruit staff and there had been an increase in complaints were of “no comfort” to complainants or barristers.
Mr Vineall was “cautiously optimistic” that performance would improve but this would require “concerted and focused effort by the BSB in conjunction with looking at ways to streamline the system, in particular to see if unmeritorious complaints can be weeded out at an earlier stage”.
He said the Bar Council supported the Legal Services Act, but it was “obviously important that the bodies who regulate under that Act perform the tasks, but only the tasks, that Parliament intended them to have”.
An LSB spokesman said: “Nick Vineall KC is new to the post, and we wish him every success. It’s perhaps understandable that he hasn’t yet got up to speed with the LSB’s strategy for regulation across the sector, a strategy that has been widely welcomed, including by government.
“When he has had time to work through the challenges facing the sector that we have identified, we’re confident he will agree that the Bar Council as an approved regulator, will have a lot to offer in terms of improving access to justice, increasing the diversity of the profession and protecting the public interest, among other things.”
He continued that an immediate priority, however, was dealing with the performance of “the Bar Council’s regulatory functions” – that is, the BSB.
“While we know this is an uncomfortable message for the Bar Council, calling for a review of the LSB will not tackle those underlying issues.
“We look forward to working with the new chair to ensure regulation of the Bar benefits the public, consumers and the profession and that the capability and capacity needed to achieve this is put in place.”
The spokesman said the LSB has been calling for a wider review of the legislative framework, including its own role, for “many years”.
“In the meantime, we keep our own performance under review and following Cabinet Office guidance, we commissioned an external review of the LSB last year, and the results will be published shortly.”
Elsewhere in his speech, Mr Vineall said the provision in the Economic Crime and Corporate Transparency Bill to add a new regulatory objective for lawyers of “promoting the prevention and detection of economic crime” had “no place” in the regulatory objectives.
“It does not belong there because it muddles the role of lawyers with the role of law enforcers.”
On criminal legal aid, he said “a system of regular reviews” was needed to ensure that, “at least more or less”, remuneration maintained its value in real terms.
“Unless some such system is put in place we will lurch from crisis to crisis, and every few years the Lord Chancellor will be faced by the disruption which inevitably takes place when the government’s approach is to starve the system of resources until that crisis point is reached.
“Nobody runs a business like that, and almost all of those whose pay comes from the state – nurses, doctors, teachers, judges – have pay review boards that make annual recommendations to government.
“A more realistic and long-term approach is needed to remunerating all lawyers – not just barristers but also solicitors and legal executives – who do publicly funded work in the criminal justice system.”