Number of public access barristers shoots up as BSB bids to relax direct instruction rules further

Deech: move will help access to justice

The Bar Standards Board (BSB) is set to remove two key restrictions that fetter more members of the public instructing barristers directly, as the number of barristers eligible for the work soars.

A consultation issued yesterday proposes abolishing the rule that prevents a client who may be eligible for public funding to instruct a public access barrister.

It also seeks to do away with the prohibition on barristers with less than three years’ practising experience from accepting public access instructions.

A record 1,383 barristers completed the public access training course this year, taking the total since the scheme was launched in 2004 to 4,143 – 63% of public access barristers have done the course in the past two years, since the BSB’s decision to extend the areas of practice where public access is permitted.

The current legal aid rule prevents an eligible client from using a public access barrister even if they do not intend to access public funding. The BSB said the key regulatory risks in relaxing the prohibition are that the client might not be in an informed position to decide whether to apply for legal aid or instruct a barrister directly, and that a barrister might accept instructions when it would have been in the client’s best interests to apply for legal aid.

“However, the BSB considers that the regulatory risks are not sufficient to outweigh the importance of the client’s choice of legal representation,” the consultation said. “Relaxing the prohibition would also provide greater access to justice for clients who find themselves without access to legal aid solicitors.”

The proposed new rule adds the safeguard of a duty on barristers to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.

On the three-year rule, the BSB said there were already adequate safeguards in other areas of its code of conduct that, “combined with appropriate guidance and training, can properly manage any potential risks to the public or the administration of justice” in removing it.

BSB chairman Baroness Deech said: “We take the provisional view that allowing clients who are eligible for legal aid to make an informed decision about whether or not to opt for public access representation will improve access to justice whilst protecting and promoting the interests of clients. 

“We hope that removing the three-year practising experience requirement will also enhance consumer choice by providing consumers with as wide a pool as possible from which to select their representation.”

The consultation closes on 9 March 2012. Find it here.

See feature: Taking public access seriously


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