Bar Standards Board
CLC Consultation: Outcomes-Focused Regulation – Revised CLC Rules and Guidance
Notes
RESPONSE
1. The Bar Standards Board (BSB) has previously responded to the CLC’s consultation
on its revised Code of Conduct. In this response the BSB set out its concerns about a
move to outcomes-focused regulation (“OFR”) including the increased regulatory
burden that OFR might create for regulated firms and individuals in order to
determine how to comply with the new Code and the clarity of the draft outcomes.
For example, a number of outcomes state that ‘clients are confident that you act in
line with the regulatory requirements....” or “clients feel that ....” when the correct
outcome should be, for example, that “you act in line with the regulatory
requirements.”
2. The BSB is not well placed to comment in detail on the regulation of Licensed
Conveyancers. However, it does have comments on the Litigation and Advocacy
Supplementary Code and the Equality Guidelines.
Litigation and Advocacy Supplementary Code
3. In its response to the first consultation the BSB set out some its concerns about the
proposal to begin regulating litigation and advocacy through OFR. The response
emphasised the risks of lowering entry and training requirements for licensed
conveyancer advocates. The BSB has also responded to the CLC’s consultation on
its proposed application to become an approved regulator for the conduct of litigation
and exercise of rights of audience, which covers this issue.
4. However, it is also imperative that the CLC provides rules and guidance that
encourage a comparable standard of advocacy and that are sufficiently robust to
allow for effective enforcement action to be taken if individuals are not meeting the
required standards. The BSB’s previous response referred to this issue. It proposed
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that the CLC should justify the absence of any of the safeguards that the BSB has in
place for Barristers exercising rights of audience.
5. The Supplementary Code does not address the following provisions within the
Barristers’ Code of Conduct:
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Provisions contained within rules 603 and 608 regarding the circumstances in
which barristers would be professionally embarrassed and should therefore
refuse or return instructions. This includes where they lack sufficient experience
or competence to handle the matter; do not have adequate time and opportunity
to prepare a case; have reason to believe they may be called as a witness; or
there is a risk of conflict or of confidential information being communicated
without the client’s consent.
Rules 606 and 607, which refer to accepting instructions and acting in the best
interests of the client.
Rules 609 and 610 which set out the circumstances in which a barrister can
withdraw from a case and the safeguards to ensure that this is done properly and
in the client’s best interests.
Our recent consultation paper, “Regulating entities” proposes that the cab rank
rule (rule 602) should apply to all advocates in BSB regulated entities and we
would urge the CLC to consider whether the cab rank rule should apply to
individuals in CLC regulated entities. For further information, see chapter 3 of the
consultation paper:
http://www.barstandardsboard.org.uk/assets/documents/Regulating%20entites%
20-%20consultation%20paper%20-%20151010.pdf
6. These are considered to be important aspects of the Barristers’ Code of Conduct and
the BSB believes that the onus should be on the CLC to justify why these provisions
are not thought necessary to regulate Licensed Conveyancers in exercising rights of
audience. There is also a need to strengthen provisions in the Supplementary Code
about acting for several parties or both sides, this is always likely to involve a conflict
of interest when litigation or advocacy is involved.
7. The BSB is also concerned that litigation and advocacy are not differentiated in the
Supplementary Code. These are very different skills that require tailored regulation.
The BSB is not in a position to comment in detail on rules relating to conducting
litigation. However, it would appear that most of the guidance in the Supplementary
Code is focussed on advocacy. Therefore it is the BSB’s contention that the
supplementary code for conducting litigation and exercising a right of audience
should be more comprehensive.
8. In general, the relationship between the Code of Conduct and the Supplementary
Code is not always clear. In particular, it is not clear why there is one set of
requirements “to act in a principled manner” in the Code of Conduct and another
different set of requirements “to act in a principled manner” in the Supplementary
Code .
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Equality and Diversity
9. The BSB is concerned that an Equality Impact Assessment does not appear to have
been completed for these changes.
10. In addition, it has the following comments to make on the Promote Equality of Access
& Service Code & Guidance:
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At 4.3 the Code refers to the ability to take positive action when deciding who to
recruit. The relevant legislation to permit this is not yet in force and is unlikely to
come into force soon.
Direct discrimination – the reference to “dual discrimination” refers to provisions
which have not been commenced and which are still under consideration by the
Government.
At 11.2 it might be helpful to set out the duties from the Equalities Act that are
referred to.
As set out in the BSB’s response to the prior consultation, the BSB strongly
believes that the CLC should require all of its regulated bodies to have E&D
policies and considers that this would assist the CLC in meeting its obligations
under the Equality Act.
Bar Standards Board
December 2010
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