The Legal Services Consultative Panel
Advice to the Secretary Of State
on
The General Council of the Bar's Application in Respect of Amendments to the
Consolidated Regulations Relating to the Provisions for "External Training"
Background
Advice
The Legal Services Consultative Panel and publication of advice
- The Legal Services Consultative Panel (the Panel) was established by the
Access to Justice Act 1999 in January 2000.
- The Panel has considered a reference made to it by the Secretary of State
concerning an application from the General Council of the Bar for approval
of amendments to the Consolidated Regulations relating to the provisions
for "external training". The Panel's advice was given in May 2004.
- The advice is published on behalf of the Panel by the Department for Constitutional
Affairs. The complete document is also available in hard copy.
- Further copies of the Panel's advice are available from the Panel Secretariat
(telephone: Louise Joyce, on 020 7210 8816).
- The Panel comprises:
| Lord Justice Potter (Chairman) |
Mr Richard Moorhead |
| Mr Jonathan Acton Davis QC |
Mr John Randall |
| Professor John Bell QC (Hon) |
Mr John Randall QC |
| Professor Hugh Brayne |
Mr Simon Sapper |
| Mr Jonathan Goldsmith |
Mr Alan Street |
| Mr John Hannam |
Ms Peta Sweet |
| Mr David McIntosh |
Dr Matthew Weait |
| Ms Karen Mackay |
Mr John Young CBE |
Principles
- In considering and putting forward its advice on the application, the
Panel has regard to the principle central to the policy of the Courts and
Legal Services Act 1990 and the Access to Justice Act 1999, namely the development
of legal services in England and Wales (and in particular the development
of advocacy, litigation, conveyancing and probate services) by making provision
for new or better ways of providing such services and a wider choice of
persons providing them, while maintaining the proper and efficient administration
of justice.
- The Panel also took account of the five principles of good regulation
identified by the Better Regulation Task Force (an independent group established
in 1997 to advise the government) against which the appropriateness and
effectiveness of any type of regulation should be tested, namely accountability,
consistency, proportionality, targeting and transparency.
Summary
- The General Council of the Bar is an unincorporated association which
describes its functions as:
"To be the governing body of the Bar; to promote and improve the
services and functions of the Bar; and to represent the interests of the
Bar on all matters relating to the profession, whether trade union, disciplinary,
public interest or in any way affecting the administration of justice"
(Taken from the General Council of the Bar's website.)
- The General Council of the Bar has also been designated by the Courts
and Legal Services Act 1990 as an "Authorised Body", which means
that it is authorised to grant rights of audience or rights to conduct litigation
to its members. Part II and Schedule 4 to the Courts and Legal Services
Act 1990 require Authorised Bodies to obtain the approval of the Secretary
of State to alterations of their Qualification Regulations or Rules of Conduct
before they can have effect.
- In its current application, the Bar Council seeks approval of amendments
to Regulations 41 and 46 of the Consolidated Regulations relating to the
provisions for external training. The amendments, if approved, would require
the completion of the non-practising period of pupillage before commencement
of practising pupillage including any approved periods of external training.
- The Panel considers that the proposed changes will facilitate the transition
from pupillage to full practice, which will be of benefit to the profession
and give increased protection to the consumer. The Panel also considers
that the amended Regulations are consistent with the five principles of
good regulation identified by the Better Regulation Task Force (Accountable,
Consistent, Proportionate, Targeted and Transparent), against which the
appropriateness and effectiveness of any type of regulation should be tested.
- The Panel therefore advises the Secretary of State that the amendments
to the Consolidated Regulations should be approved in full.
Application by the General Council of the Bar for Approval
of Amendments to the Consolidated Regulations Relating to the Provisions for
"External Training"
Advice to the Secretary of State
Introduction
- This advice relates to the Bar Council's application to the Secretary
of State dated 20 October 2003 to amend the Consolidated Regulations of
the General Council of the Bar and Inns of Court. The Secretary of State
referred the Regulations to the Panel for advice on 26 April 2004.
- The Bar Council seeks approval of amendments to regulations 41 and 46
of the Consolidated Regulations relating to the provisions for "external
training". The amendments would require the completion of the non-practising
period of pupillage before commencement of any period of practising pupillage.
The Proposed Amendment
- All barristers entering practice must first have completed a mandatory
12 months pupillage, consisting of six months non-practising pupillage,
when pupils are expected to shadow their pupil-supervisors and learn by
observation. This period is followed by six months practising pupillage,
when pupils begin to practise the skills they have learnt, under the supervision
of their pupil-supervisors. During this period, with the permission of their
pupil-supervisors, pupils can undertake to supply legal services and exercise
rights of audience.
- Pupils are currently permitted to undertake various forms of "external
training" (for instance, work in a firm of solicitors or a period serving
as a marshal with a Judge of the High Court of Justice). "External
training" may contribute towards some or all of the practising pupillage
period and may be undertaken at any time, including prior to commencement
of the non-practising period of pupillage.
- The Bar Council considers that more value would be gained from the practising
period of pupillage when it acts as a transitional period between non-practising
pupillage and full practice. It considers that it is inappropriate for pupils
to be permitted, as of right, to undertake some or all of the practising
period of pupillage prior to the completion of non-practising pupillage.
- The Bar Council's proposed new Regulation 41.2(ii)(2) therefore stipulates
that, save with the approval in writing of the Joint Regulations Committee,
the practising period of pupillage shall not commence until the completion
of the non-practising period of pupillage. New regulation 46.2 clarifies
that an approved period of "external training" shall be treated
as a period of practising pupillage, and as such shall be governed by the
provisions of regulation 41.2(ii).
The Panel
- notes that "external training" may be undertaken as part of
the period of practising pupillage.
- notes that the current regulations permit "external training"
to be undertaken at any time and that, as such, "external training"
may be completed before commencement of non-practising pupillage.
- considers that the proposed changes will facilitate the transition from
pupillage to full practice, which will be of benefit to the profession and
give increased protection to the consumer.
- is satisfied that, in individual cases, it is appropriate for the Joint
Regulations Committee to waive the requirement for all elements of practising
pupillage to be undertaken after completion of the non-practising pupillage.
- considers that the altered Consolidated Regulations are consistent with
the five principles of good regulation identified by the Better Regulation
Task Force (Accountable, Consistent, Proportionate, Targeted and Transparent),
against which the appropriateness and effectiveness of any type of regulation
should be tested.
Conclusion
- The Panel considers that the proposed amendments to the Consolidated Regulations
represent an improvement to the existing arrangements concerning pupillage,
with no apparent detrimental effects, and recommends to the Secretary of
State that the changes be approved.
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