Guy Mansfield QC
Chairman of the Bar
289-293 High Holborn
THE CLEMENTI REPORT – CONSULTATION WITH THE PROFESSION
thank you for your letter dated
1. As a matter of principle, the Bar Council should insist that one or two Bar Council Members be represented on the Bar Standards Board (BSB) which will be answerable to the Legal Services Board (LSB), when created. It is essential so as to have an effective and efficient communication link between the two – the BSB and the Bar Council – and so as to avoid the BSB making common mistakes regarding Bar Council policy/procedures.
2. I note at paragraph 15 of the Paper that the Chairman and the Vice Chairman would each be entitled to attend and speak at BSB meetings, but neither shall have a vote. I believe this would be counter-productive and the Chair and Vice Chairman of the Bar Council should have a vote at BSB meetings. The same cannot have any teeth, in my view, to influence BSB without a vote and representation on BSB will become meaningless. Entitling somebody to attend and speak at BSB meetings is, of course, not the same as "membership" of the same and so, the important communication link, will be lost.
3. In terms of Membership of BSB, I believe the balance is about right, save for my comments on the Chairman and Vice Chairman of the Bar Council. The Paper also needs to make clear as to whether or not BSB is a subsidiary body of the LSB or of the Bar Council. If Delegation of Powers is to be real, I believe that BSB should have delegated powers from the LSB and not from the Bar Council. The Paper, as written, suggests that BSB is a subsidiary body to the Bar Council and, in all intent and purposes, therefore, it would be seen "as a part of the Bar Council" and its regulatory image may be tarnished.
4. Having two Bar Council Members on BSB will not, however, tarnish the image of BSB as an "independent regulator" as the two Members will still be in a minority, continue to put the public interest first and, of course, have an opportunity to carry out representative interests for the Bar Council. As the membership of BSB will be predominantly non-Bar Council Members, the final regulatory decisions will remain a matter for BSB and LSB.
terms of the Bar Council, I note that it will remain the single governmental
and representative body for the Bar of England and
6. In terms of paragraph 9 of the Report (The Right of the Bar Council to Revoke or Replace Members of BSB), I believe that this is dangerous and counter-productive, as the Bar Council should not be "seen" to interfere in the independent regulatory functions of BSB. If there is to be any delegation of functions and responsibilities, therefore, the same should come from the LSB, which will have the power to revoke or to replace relevant Members. The Bar Council cannot be seen to "veto" decisions of BSB and, in light of Clementi, I believe, that would be wrong under those proposals as well.
7. In terms of the proposed Terms of Reference for BSB – set out at paragraph 13 – I am broadly comfortable with the same. The proposed Committee structures under BSB – set out in paragraph 18 – are also acceptable, save that in terms of the Quality Assurance Committee, I suggest that it be labelled the "Quality Assurance and Best Practice Committee", which would also have the remit of propagating best practice and general guidance to Chambers, Employed Barristers, the Inns of Court, Pupil Barristers, the Bar Vocational Course and other Training Providers to the profession. Otherwise, the Committee structure makes a sensible split between the regulatory matters to be dealt with by BSB.
8. With regard to the relationship of the regulatory committees with the BSB – paragraph 24 to 28 of the Report – there is, as highlighted earlier, a fundamental principle in terms of which body actually "establishes" the regulatory committees – the Bar Council or LSB? If the LSB is to delegate such functions and responsibilities, then the Bar Council has no say in the same except for the one or two members on the BSB. It follows, therefore, that the Bar Council cannot have a veto right or the power to "call in" any issues being determined by the BSB. Any such call-in rights must remain with the LSB to ensure a proper regulatory split in the profession. There would, of course, be nothing to prevent BSB from "referring up" any issue to the LSB or, for consultation purposes only, to the Bar Council before BSB (or LSB) determines any regulatory matter.
9. In terms of the Bar Council's "remaining" representative committees, there is a need for role and purpose clarity of the same. The Bar Council will need to be clear about their remits for taking the profession forward. In terms of the appointments body, I believe it should follow Nolan principles and be the LSB – i.e. not the Bar Council - that determines the appointments structure and membership of BSB.
10. With regard to the Inns of Court relationship, the Inns of Court should be part of BSB structure and not outside of it. As I see it, there is no choice for the Inns of Court but to "engage" and they cannot unilaterally withdraw or continue to transact regulatory functions under the Clementi Reforms.
11. With regard to paragraph 42 of the Report, the Report is written on the assumption that the Bar Council will provide some "common services" to both the regulatory and the representative sides. I believe this is unnecessary as the LSB may have an independent view on whether or not it chooses to provide the regulatory support itself.
12. Finally, the Report is silent over the financial and human resource implication of these proposals for the Bar Council and, more importantly, the Bar subscribers. I hope the final report addresses these points.
hope you find the above comments of some assistance to you and I note that the
deadline for consultation is on
Mirza Ahmad, MBA LLM Barrister
cc Members of the Executive Committee:-
James, Head of Legal & Committee Services,
Robert Posner, Director of Law & Administration, Bexley London BC
(+copy of Bar Chairman's letter and Report)
Sandra Moss, Manager, CIPFA
Alison Sunderland, Local Government Association
Ms Gifty Edila, Director of Law, Kensington & Chelsea London Borough