Concerns raised over regulatory complexity as Bar Council urges proportionate reform and tighter oversight of LeO budget
The Bar Council has raised concerns about potential additional regulatory burdens in its response to a series of projects announced by the Legal Services Board (LSB), as well as the proposed budget for the Legal Ombudsman (LeO).
Responding to the LSB’s planned programme of work, the Bar Council said it supported efforts to improve the regulatory framework but cautioned against reforms that could impose disproportionate costs or complexity on the profession.
Responding, Kirsty Brimelow KC said the Bar already operates within a “robust ethical framework”, supported by training, guidance and an ethical enquiries service available to practising barristers.
She said: “At the Bar, there is already a robust ethical framework in place. This already includes a priority of duties and ethical standards that must be met in education, pupillage and in the first three years of practice. The Bar Council itself has long supported barristers with understanding their ethical obligations. We deliver a weekday daily ethical enquiries service for all practising barristers via email and on the phone. We also provide a wide range of ethics and practice guidance and events.
We think a principles-based approach is appropriate for the LSB’s ethical policy statement, but this should not be taken as an indication of the need to make substantial change to the regulation of the Bar.”
While backing a principles-based approach, the Bar Council warned against an overly prescriptive model of regulation and called instead for improvements to existing tools, such as making the Bar Standards Board handbook clearer and easier to use.
It also addressed concerns raised in the LSB consultation about non-disclosure agreements and strategic lawsuits against public participation, pointing to recent legislative developments as evidence that the issue is already being tackled through statute rather than regulation.
Kirsty Brimelow KC added: “We recognise that NDAs and SLAPPS should be considered and included in the LSB’s work on professional ethics, but we do not agree, if it is suggested, that these are commonplace abuses at the Bar, or that they require additional regulatory control. The ethical issues faced by different legal professionals can arise in strikingly different circumstances and for this reason the Bar Council is opposed to an overly prescriptive approach. Later this year we will publish our own ethics report.”
On the LeO budget, the Bar Council welcomed the LSB’s decision to reject a proposed 11.1% increase and instead approve a rise of 6.5%, taking the budget to around £20m.
Kirsty Brimelow KC said: “We have consistently requested that the LSB exercises tighter oversight of the LeO budget so the confirmation of a lower increase is good news for our members.”
She added that LeO should prioritise tackling its growing backlog and increasing number of complaints, and ensure that resources are directed towards these core functions.
In its response to the Ministry of Justice’s review of the LSB, the Bar Council also raised concerns about what it described as a “scrutiny gap” in relation to the Bar Standards Board, arguing that it lacks sufficient powers to oversee regulatory activity carried out in its name.
It said the LSB had not made sufficient use of its powers to scrutinise the BSB’s budget, allowing above-inflation increases despite objections from the profession, and warned that both bodies must exercise greater financial discipline given that they are funded by lawyers.
While noting that no increase is proposed to the LSB’s own budget, the Bar Council said this was largely due to office-related savings and called for continued restraint in future years.