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THE FUTURE of the Bar Council in its present form may be cast into doubt after its two-year bid to establish a rule
forcing barristers to pay subscriptions was rejected by the Lord Chancellor and the four designated senior judges.
The Bar's long-running battle for a mechanism enforcing payment was fuelled by the
refusal of more than 570 private practice barristers - around five per cent of the total - to pay because of apparent dissatisfaction with the council.
Non-payment, including those who pay less, creates a shortage of some £150,000 in Bar Council accounts.
Now more Bar members may refuse to pay once it is known that the council has no power to require payments. Barristers say this will undermine the Bar's finances.
Christopher Sokol, of 24 Old Buildings, says: "The level of subscriptions is high and the perceived benefit to the Bar of the institution is low. It may be others will choose not to pay."
Sokol successfully defended the Disciplinary Tribunal of the Inns of Court test case, Re S., in 1990 on the same issue. The Lord Chancellor's ruling is partly based on its findings.
Bar Council member Neil Addison says: "It is obviously going to concern the Bar Council financially, because it may encourage more people not
The Bar aimed to establish a conduct rule allowing it to disbar non-paying barristers.
The judges considered whether the proposed rule change furthered the Bar's statutory objectives under the Courts and Legal Services Act 1990, to maintain professional standards.
Lord Mackay explains in a letter to Bar Council chairman, Peter Goldsmith QC, that Mr Justice (now Lord) Nolan's ruling in Re S. provides "persuasive authority that it is contrary to the public interest for the Bar Council to treat a failure to pay subscriptions as a matter of professional misconduct since such subscriptions are, in part, absorbed by the functions of representing and acting for the Bar rather than merely regulating it".
The 1990 Act does nothing to change this, Mackay writes.
The rejection is based on the fact that subscriptions fund the Bar Council's non-statutory role as a trades union. But he says the rule might be acceptable if enforced subscriptions were "solely for the proper maintenance of standards at the Bar", such as disciplinary, training and educational matters.
"The current rule is flawed in this respect, since it does not distinguish between the purposes for which the fee income may be used," he writes.
The Bar Council could now make another application or a challenge in the courts.
Goldsmith says: "This is a minor setback in the process at arriving at a more secure
financing of the governance of the Bar." He says members must be prepared to finance the Bar Council's professional and regulatory activities if the Bar is to remain self-regulated.