12 Jan 2023

New Bar Council chair champions independent Bar and calls for regulatory reform

Commercial silk Nick Vineall KC’s speech will ruffle feathers at Bar’s oversight and frontline regulators

Nick Vineall delivering his speech in London

Nick Vineall

Nick Vineall KC, the 2023 chair of the Bar Council of England & Wales, has called for a government review of the profession's oversight regulator, the Legal Services Board (LSB), a suggestion sharply rejected by the LSB.

In his inaugural speech, Vineall promoted the independence of advocates; “unfinished business” in improving fees for publicly funded criminal work, particularly prosecutors; and the need to improve diversity at the Bar.

He also warned against proposed economic crime legislation that he said would add regulatory objectives to the work of counsel, blurring the line between lawyers and law enforcers and underming the Bar’s ‘cab rank rule’ which requires barristers to take on cases ‘within their knowledge and expertise provided they are free to do so, no matter how unpalatable the case’.

Vineall said: “We are not a branch of law enforcement. We do not – we are not permitted to – choose our clients on the basis of their causes or what we think of them.”

However, his comments on regulation, framed as ensuring due proportionality, were controversial. Citing a 2021 LSB strategy paper on ‘reshaping legal services’, he accused the LSB of “treating its remit as wider than it in fact is”. 

The LSB, said Vineall, was “surprisingly explicit about its disapproval of the regulatory regime created by Parliament, and…equally explicit about its desire to be a sector-wide regulator”. 

That, said the immediate past co-head of commercial set 4 Pump Court, went against the Legal Services Act 2007, which “struck a careful balance between… separate self-regulating professions”. “There is a serious and important debate to be had about whether or not it is the job of the LSB to develop a strategy for the entire legal services sector”, Vineall argued, maintaining that the LSB’s role should be confined to oversight alone.

The last government-sponsored review of the LSB was in 2017, before the 2019 general election. Such reviews normally occur every three years. Vineall said there was “nothing in the last review” that suggested the board should be developing an overarching strategy. 

With current LSB chair Dr Helen Phillips due to step down in March, Vineall artfully, if optimistically, suggested a fresh government review of its role “would allow… new leadership to be confident that it was setting off in the right direction.”

The LSB, however, sharply rejected the suggestion, while the Ministry of Justice was coolly non-committal in response. The Law Society declined to comment.   

A MoJ spokesperson said it was aware of Vineall’s concerns and would consider them in due course, adding that “reforms to economic crime will not impact on the independence of the sector but will promote compliance and affirm the duties of regulators”. 

The LSB noted that Vineall was “new to the post” and so it was “perhaps understandable that he hasn't yet got up to speed with the LSB's strategy for regulation across the sector”, which, it claimed, had been widely welcomed. “When he has had time to work through the challenges facing the sector that we have identified, we're confident he will agree that the Bar Council as an approved regulator, will have a lot to offer”. 

The regulator pushed back at Vineall, saying that he would do better to look at the Bar’s own frontline regulator – the Bar Standards Board (BSB) – which has been beset with leadership changes, performance issues and concerns over its treatment of bullying, sexual harassment and the use of social media by barristers. 

“While we know this is an uncomfortable message… calling for a review of the LSB will not tackle those underlying issues. We look forward to working with the new chair to ensure regulation of the Bar benefits the public, consumers and the profession and that the capability and capacity needed to achieve this is put in place.”

Vineall acknowledged the BSB needed to improve its performance, especially if “disciplinary matters are dealt with both fairly and promptly.”  

“Improving performance will require concerted and focussed effort by the BSB in conjunction with looking at ways to streamline the system,” he said, adding that the Bar Council and BSB had “a shared understanding… that present levels of performance are not acceptable".

Citing costs concerns, he called for an urgent “deduplication exercise" to ensure both bodies, which are meant to be operationally independent, “do not unnecessarily overlap.”

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