The Legal Services Board (LSB) made “a mountain out of a molehill” with its investigation into Bar Council interference with its independent regulator, the new chairman of the Bar has claimed.
Nick Lavender QC also hinted at a view that the Quality Assurance Scheme for Advocates (QASA) should be delayed pending the outcome of the Jeffrey review of criminal advocacy.
In November, following a five-month investigation, the LSB announced that the Bar Council had accepted that it breached the independence of the Bar Standards Board (BSB) by interfering in controversial changes to the cab-rank rule.
However, the LSB agreed to an informal resolution, having come close to issuing a censure, after the Bar Council and BSB accepted the investigation’s findings and agreed steps to remedy the problems identified.
But in an interview with Legal Futures, Mr Lavender said the investigation was “disproportionate”. Refusing to discuss the detail of the report on the extent of the Bar Council’s involvement in the rule change – which he said would be “unhelpful” – he focused instead on the fact that it was the BSB and its committees that made the final decision to approve the change.
Questioning the LSB’s finding that the Bar Council was the “controlling mind”, he said: “When BSB sat round as a board and took a decision, I’m puzzled as to whose mind on that occasion was controlled.” The LSB, he said, “made a mountain out of a molehill”.
The Serle Court commercial silk – who has sat on the Bar Council since 1994 – was exceptionally measured and controlled in all his responses. He said he does not have a specific agenda for his year in office, preferring to focus on the importance of “continuity” and a longer-term view at the helm of the organisation.
Asked whether the Bar Council would recommend to criminal barristers that they sign up to QASA in light of the recent judicial review, he refused to comment until a decision is made on an appeal.
However, he maintained the Bar Council’s opposition to plea-only advocates – “if you’re going to be accredited as competent to do cases of a certain competency, you should be able to do them whether the client pleads guilty or not” – and suggested that it should have started off as a voluntary scheme “on the basis that you should walk before you can run”.
Some have argued that the regulators behind QASA should delay implementation until the outcome of the government-commissioned Jeffrey review. “I can see an argument for that position,” Mr Lavender said – but he would not be drawn further.
He strongly supported the Bar Council line that the LSB should be abolished as part of the government’s legal regulation review.
He said: “Since I started in practice we have had three acts of Parliament that have tried to find the right answer to the regulation of the legal profession… The recent call for evidence by the Ministry of Justice shows that the government themselves recognise that Parliament hasn’t yet got it right, so clearly it’s right to look afresh at what is the right answer.
“The present situation seems to involve an element of over-regulation and that’s why we would be in favour of simplifying it… abolishing the LSB as presently constituted would go some way towards that.”
The “spirit” of the Legal Services Act was for the oversight regulator to be just that – letting the frontline regulators get on with their work so long as they stay within the parameters laid out by legislation – and operate with a “lighter touch” than the LSB does, he said.
The Bar Council, like the Law Society, has called on the government to return to it many key regulatory functions of its regulatory arm. However, it was problems with both carrying out regulatory functions in the profession’s interests, rather than the public interest, that drove Sir David Clementi to put separating regulation and representation at the heart of his reforms a decade ago.
Despite repeated questioning, Mr Lavender did not explain why the 115-barrister strong Bar Council should be trusted with regulation again. “The Bar Council very much has the public interest in mind,” he said. “They did lots of things when they were responsible for the rules that were in the public interest… Clementi’s view was based on the prevailing view in relation to regulation and fashions change.”