02 February 2015

Frequently asked questions - Authorisation to Practise 2018/19

The Records Team deals with barristers' queries about the AtP process. Here are some of our most frequently asked questions and their associated answers.

Please contact us if you have any queries about any of this information.

1. Why did the Bar Standards Board (BSB) introduce the AtP process?

The changes arose from the advent of the Legal Services Act 2007, and in particular section 13(2), which requires individuals wishing to provide reserved legal activities to be authorised to do so by the relevant approved regulator. Under section 14 of the Act it is a criminal offence for a barrister to carry out a reserved legal activity unless they are authorised to do so by a practising certificate.

In 2010 the BSB consulted with the profession on the AtP arrangements. The Practising Certificate Rules (PCRs) were also consulted on as part of the Code Review consultation, which was issued in January 2011. The PCRs now form Section C of the Scope of Practice Rules in the BSB Handbook.

The AtP process is a requirement of the Legal Services Act 2007 and is a significant safeguard for the public, ensuring that only appropriate persons are authorised to undertake reserved legal activities.  It is therefore important that barristers take personal responsibility for meeting the ongoing requirements for authorisation and confirming that the information submitted is correct.

2.   What is authorisation to practise and who will be affected by it?

The approach to authorisation is a more formal process for the issuing of practising certificates and the authorisation of barristers to undertake reserved legal activities. During the process, barristers are required to:

  • Verify their current contact details,
  • Verify their practising status and entitlement to undertake reserved legal activities,
  • Confirm whether they have completed the requisite amount of continuing professional development (CPD) activity,
  • Declare their practice area information,
  • Make the declarations required by the BSB in relation to Youth Court work and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;
  • Declare that they have and will maintain such insurance as may be required under the Code of Conduct in the BSB Handbook,
    • Declare which band of income they fall within,
    • Sign a declaration of truth, which is designed to ensure understanding of the new process and new system, and
    • Pay their practising certificate fee.

3.         When will I be able to apply for my practising certificate online?

You will be able to log onto MyBar to create your online account and apply for your 2018/19 certificate from Monday 26 February 2018.

  • In order to access your MyBar account, you will need to register and set up and account.  Please click on the First Time Login guide which will walk you through the process.

4.         When is the deadline for applying?

Barristers have until Saturday 31 March 2018 to complete the AtP process. Applications after this date may have a 20% surcharge added to their total fee.

Barristers who fail to complete the renewal process by Monday 30 April 2018 will no longer appear on the BSB Barristers' Register and will not be authorised to practise. From 1 May 2018, any barrister believed to be practising without a certificate will be reported to the BSB, who will take such action as is considered appropriate.

A barrister who returns to practice can apply to be authorised at any point throughout the year. They must ensure that they are authorised before undertaking any reserved legal activities.

5.         Why is the deadline 31 March if my practising certificate is valid until 30  April?

The practising certificate year runs from 1 April to 31 March, but your practising certificate expires on 30 April each year (in accordance with Rule S62 in the BSB Handbook). This is so that if for any reason you fail to complete the Authorisation to Practise process by the deadline of 31 March, you are still authorised to practise as a barrister and undertake reserved legal activities until 30 April. As you are aware, practising as a barrister when not authorised to do so is a breach of the BSB Handbook, and undertaking reserved legal activities when not authorised to do so is a criminal offence. Your practising certificate expiring on 30 April each year therefore protects you should you fail for any reason to complete the Authorisation to Practise process by the deadline of 31 March.

6.         How do I apply for a practising certificate?

If you are making a renewal application please log into MyBar, and click 'Renew Online'.

If you do not hold a current practising certificate, please complete the 'Change my practising status' application via MyBar.  This is found under 'My practising details'.

7.         Will there be instructions and guidance to complete the process online?

MyBar includes context based online help and guidance for users completing applications. 

8.         Do I have to apply online for my practising certificate and authorisation?

Using MyBar is compulsory when applying for a practising certificate. MyBar will ensure a better service for you and give you more control over the data we hold for you.

Should you need to discuss alternate arrangements please contact the Bar Council Records Department on 020 7242 0934 or email Records@BarCouncil.org.uk.

9.         How do I find out how much my 2018-19 Practising Certificate Fee (PCF) will be?

The PCF varies by band of income barristers fall within.

The 'Schedule of Practising Certificate Fees 2018-19 policy and guidance', outlines the fees for the profession. If you are returning to practice part-way through the year, please log into MyBar in order to complete the Authorisation to Practise application.

10.       How long will it take to renew my practising certificate and be authorised to practise?

Applications must be made online through MyBar, and will take approximately ten minutes to complete online. Should you need to discuss alternate arrangements please contact the Bar Council Records Department on 020 7242 0934 or email Records@BarCouncil.org.uk.

Individuals returning to practice part way through the practising certificate year will need to complete the 'Change my practising status' application via MyBar.  This is found under 'My practising details'.

11.       Will I be required to provide additional information when I apply to be authorised to practise?

In conjunction with your application, you may be requested to provide other additional information. We will contact you directly if additional information or clarification is required.

12.       How do I get my practising certificate?

Your certificate will be stored in MyBar as a PDF file, which you will be able to view and print. Your practising certificate will not be sent to you in the post.

13.       Information in my MyBar account is incorrect. I am unable to apply for a practising certificate until it is amended, what should I do?

Change of status

You will need to complete the 'Change my practising status' application via MyBar.  This is found under 'My practising details'.

Please note you will need to review your practising addresses once you have submitted the application.  This will be confirmed at the end of the process.

Change of practising address

You will need to complete the 'Change my practising address' application via MyBar.  This is found under 'My practising details'.

Please note you will need to review your practising addresses once you have submitted the application.  This will be confirmed at the end of the process.

14.       What will a practising certificate authorise me to do?

A practising certificate will authorise you to provide those reserved legal activities that are listed on your practising certificate, subject to compliance with the relevant provisions of the BSB Handbook.

15.       If I have a practising certificate authorising me to undertake reserved legal activities, will I automatically be entitled to undertake those reserved legal activities?

The practising certificate authorises you to undertake reserved legal activities, subject to compliance with the relevant provisions of the BSB Handbook. You will need to check that you are in compliance with the provisions of the BSB Handbook that are relevant to the particular reserved legal activity that you wish to exercise.

For example, if you have completed pupillage, your practising certificate will authorise you to exercise rights of audience. However, rS20 of the Scope of Practice Rules in the BSB Handbook states that a barrister must work from the same chambers or office as a 'qualified person' for their first three years of entitlement to exercise full rights of audience (the 'three-year rule'). If, therefore, you have not yet been entitled to exercise full rights of audience for three years, but do not work with a 'qualified person', you will not in fact be entitled to exercise rights of audience, despite being authorised to do so. 

Similar rules are in place for supplying legal services to the public and conducting litigation (if you have been separately authorised to conduct litigation) for both self-employed and employed barristers.  The 'three year rule' also applies if you are employed in an authorised body (eg a solicitors' firm).  However, if you are employed in a non-authorised body (eg as in-house counsel) and you are only providing legal services, exercising a right of audienceor conducting litigation for your employer or those persons listed at rS39.2 to rS39.6, then you need only work with a 'qualified person' if you are of less than one year's standing.   

16.        How will the public know that I am authorised to practise?

The BSB's Barristers' Register is available here.

The Register only displays the details of barristers who are authorised to practise and have a practising certificate.

17.       The Records Team refused to issue a practising certificate/revoked my practising certificate but I think I am eligible, what can I do?

rS57 of the Scope of Practice Rules in the BSB Handbook outlines the circumstances in which the Bar Council (acting by the BSB)shall notissue a practising certificate. rS59 outlines the circumstances in which the Bar Council (acting by the BSB)mayrefuse to issue a practising certificate, ormayrevoke a practising certificate in accordance with Section C5 of the Scope of Practice Rules. rS73 outlines the circumstances in which the Bar Council (acting by the BSB) shall revoke a practising certificate.

Generally, when a practising certificate is revoked, it is on the basis that circumstances have changed since the practising certificate was initially issued. Barristers will be able to apply to the BSB for a review if they believe that their application for a practising certificate has been wrongly refused, or that their practising certificate has been wrongly revoked. In some circumstances a temporary certificate may be issued.

18.       Do I need a practising certificate?

You will need a practising certificate if you wish to hold yourself out as a barrister in connection with the supply of legal services or to undertake any reserved legal activities. Reserved legal activities include exercising rights of audience, conducting litigation, reserved instrument activities, probate activities and the administration of oaths[1].  'Legal services' are more broadly defined in the BSB Handbook.

19.       I am not sure whether I need a practising certificate and to be authorised to practise for the work that I do, what should I do?

If you are undertaking any of the following reserved legal activities, you will require a practising certificate:

  • Rights of audience
  • Conducting litigation
  • Carrying out reserved instrument activities and probate activities, or
  • Carrying out the administration of oaths.

It is a criminal offence under the Legal Services Act 2007 to carry on any of these activities without a practising certificate which authorises you to do so.

If you are registered under rS15 of the Scope of Practice Rules in the BSB Handbook you may provide legal services whilst holding yourself out as a barrister subject to the conditions and restrictions set out in rS15. For further information please refer to the BSB's guidance for barristers without practising certificates (unregistered barristers) who supply legal services.

If you are still unsure whether or not the work you are undertaking requires you to hold a practising certificate then please contact Ethical Enquiries Service on 020 7611 1307 or email Ethics@BarCouncil.org.uk

20.       I am authorised to practise as an employed barrister, but I am just about to move into self-employed practice, do I need to inform the BSB?

Yes, you need to make an application for change of status in accordance with Rule S69 of the BSB Handbook.

21.       I am going on maternity leave and am planning to cease practice. What do I have to do?

You must be authorised to practise and pay your PCF until you cease practising.

Barristers are encouraged to retain their practising certificate during maternity leave. However, you will be entitled to a pro rata refund of the core fee element of your PCF when you go on maternity leave if you choose not to do so.

 22.      I have not held a practising certificate for five years, what do I have to do to obtain one?

If you wish to apply for a practising certificate you will need to complete and return an authorisation form, which can be found on the BSB website.

From 1 April 2015, any barrister who within the last five years either (a) has not held a practising certificate, or (b) has not satisfactorily completed (or has not been exempted from the requirement to complete) either the non-practising period of 6 months of pupillage or 12 months of pupillage,maybe required to comply with training requirements imposed by the BSB.

23.       I am due to go on sabbatical for six months and will not be practising as a barrister, do I still need to be authorised?

If you are not undertaking any reserved legal activities, you are not required to hold a practising certificate or be authorised to practise. 

If you are changing your status, you are required to update your record and inform us of the change within 28 days. The easiest way to do this is to complete the unregistered barrister notification form.

Any barrister who changes their status to unregistered (formerly known as non-practising) will receive a pro rata refund of the core fee of the PCF if they cease practice in the first three months of the practising certificate year.

The Records Team must be given prior notification of any change of status, either in writing or via the online account within 28 days. Any such change that generates an entitlement to a refund (see below) or incurs an additional charge will be subject to the following policy: provided that notification of the change has taken place within the 28-day window, any refund due will be applied as of the date of the change. In the event that notification is made later than 28 days, the refund will apply from the date of notification rather than the date of change. Whereas, any additional fee due will always be applied as at the date of the change regardless of date of notification.

24.       I am semi-retired, do I need to have a practising certificate and be authorised to practise?

All barristers who are undertaking reserved legal activities or holding themselves out as a barrister whilst providing legal services need to be authorised to practise regardless of how much time they spend undertaking these activities.

25.       I only provide legal advice to my employer, do I need to have a practising certificate and be authorised to practise?

If you hold yourself out as a barrister when supplying legal advice to your employer or undertake any reserved legal activities you need a practising certificate.

26.      I am employed by an authorised body[2]. Do I need to have a practising certificate and be authorised to practise?

You are required to hold a practising certificate and be authorised to practise if you are holding yourself out as a barrister whilst supplying legal services to the authorised body or to their clients, or undertaking any reserved legal activities.

If you work for an authorised body which uses a non-authorised body to contract with you as an employee, you should nonetheless apply for an employed barrister (authorised body) practising certificate. However, if you undertake any reserved legal activities you must ensure that your arrangement is compatible with section 15 of the Legal Services Act 2007.

27.       Can I supply legal services to the public, if I am employed by an authorised body?

Employed barristers who are employees/managers of authorised bodies can supply legal services to clients of those bodies, provided they are in compliance with the 'three year rule' in having a 'qualified person' for the supply of legal services to the public.[3]

Pupillage

    28.       Do pupils in the practising period of pupillage ('second six') need a practising certificate and be authorised to practise?

Pupil barristers in their practising period of pupillage need to have a provisional practising certificate. However, by virtue of submitting a satisfactorily completed certificate of completion or exemption from the non-practising period of pupillage (first six) and registering a practising period they will be issued with a provisional practising certificate, which will be valid for the duration of the practising period of pupillage. Pupils in their non-practising period of pupillage (first six) do not need to be authorised to practise, as they are not entitled to do anything that constitutes practice as a barrister.

29.       What do I do regarding my practising certificate and authorisation, when I come to the end of my pupillage?

In your practising period of pupillage you had a provisional practising certificate, which entitled you to practise as a pupil barrister. Once you have satisfactorily submitted your details to confirm completion of pupillage, you will be sent details about how to change your status to that of a practising or unregistered member of the Bar, depending upon whether you are practising as a barrister.

30.       I have never completed or been exempted from pupillage, can I be authorised to practise?

If you were Called to the Bar before 1 January 2002, you may apply for a limited practising certificate, which will allow you to practise as an employed barrister only. Barristers with limited practising certificates may also not be entitled to exercise any rights of audience as a barrister.

If you were Called to the Bar after 1 January 2002, you cannot be authorised to practise as a barrister unless you have completed or been exempted from pupillage.

31.       I have just completed pupillage and am now in employment. There is no one suitable to be my 'qualified person'. Can I be authorised to practise?

You can be authorised to practise. However, you will not be entitled to supply legal services to the public (eg to clients of your employer), exercise any rights of audience or conduct litigation.

Continuing Professional Development (CPD)

32. The new EPP CPD scheme came into force on 1 January 2017.  For which year am I declaring compliance during the AtP process?

You are declaring compliance for the previous CPD calendar year. This means during the 2018 AtP process you will be declaring compliance for the period 1 January 2017-31 December 2017.  The new EPP CPD scheme was therefore in force.

The requirements for NPP barristers have not substantially changed and declaration should be completed in the usual way

Barristers are no longer required to return their record card to the BSB. They are still required to comply with the CPD requirements and  should retain a copy of their record as the BSB may, as part of its spot-checking process, require the barrister to send it to the BSB for review.

You should only declare that you are up to date with your CPD requirements if you have complied with the CPD requirements between January and December 2017 or if you have been granted an extension of time. False declaration identified through the spot checking process could lead to disciplinary action.

https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/continuing-professional-development-from-1-january-2017/

33. The CPD declaration asks me to confirm that I am up to date with my CPD requirements. I did not hold a practising certificate last year, can I complete this declaration?

Yes, if you completed the CPD hours for the last year that you held a practising certificate. If you are unsure, please contact cpdrecords@barstandardsboard.org.uk to check.

34. I have not completed my CPD requirements, can I still be authorised?

All barristers will be asked to confirm whether they are up to date with the CPD requirements under Section C of the Qualification Rules in the BSB Handbook.

Any barrister who has not completed their CPD requirements will not be refused authorisation. However, they will be asked to list what action they are taking to remedy this situation. Failure to take further action to resolve your CPD requirements may result in you being referred to the BSB's Supervision Department.

New practitioners are subject to a three-year programme and therefore should select this option on the declaration.

Insurance

35.       I am a barrister in chambers and am not sure whether I have insurance cover with BMIF (Bar Mutual Indemnity Fund). Can I be authorised?

Barristers who are unable to confirm that they have insurance will not be authorised to practise. Please contact BMIF on 020 7621 0405 or email info@barmutual.co.uk to confirm whether you have cover or to arrange cover.

36.       I am a barrister employed by the Government and do not have insurance. Do I need to complete the insurance declaration?

All barristers are required to complete the insurance declaration confirming that they have and will maintain such insurance as may be required under the Code of Conduct in the BSB Handbook.

As Government barristers are not required to hold insurance, compliance with the Code of Conduct in the BSB Handbook for them means not actually requiring insurance. Therefore this category of barristers will be able to complete the declaration without needing to have insurance.

37.       I am an employed barrister, providing legal services to my employer only. Do I need to complete the insurance declaration?

Although insurance is only required under rC76 for barristers who are providing legal services to the public, you will still be required to complete the declaration confirming you have and will maintain such insurance as may be required by the Code of Conduct in the BSB Handbook.

However, in this case, compliance with the Code of Conduct means not requiring insurance. It may, however, be prudent for this category of barrister to confirm with their employer that they have appropriate insurance in place to cover actions of their employees, where the employee is personally liable.

38.       I am a self-employed barrister practising overseas, am I required to hold insurance and be entered as a member with BMIF?      

Unless you have previously been granted a waiver from this requirement, yes. Where you are acting as a self-employed barrister, you must be a member of BMIF (under rC76.2 of the Code of Conduct in the BSB Handbook). This means that if you hold a self-employed practising certificate, you must be a member of BMIF.

rC76 also requires that 'you must ensure that you have insurance (taking into account the nature of your practice) which covers all the legal services you supply to the public'.

Annual notification under rS15 of the Scope of Practice Rules in the BSB Handbook

39.      I wish to hold myself out as a barrister in connection with the supply of legal services under rS15 (previously known as rule 206 of the Code of Conduct) - what am I required to do in order to do so?

If you did not notify the Bar Council that you wished to hold yourself out as a barrister in connection with the supply of legal services on or before 31 March 2012, you are now unable to do so. The Bar Council has not been accepting notifications under this rule since 31 March 2012 and this particular category of unregistered barristers has been closed to new entrants since then.

Unregistered barristers who did provide the notification on or before 31 March 2012 are required to log onto MyBar and either confirm or update their contact details, and complete a declaration stating that they wish to continue to hold themselves out as a barrister in connection with the supply of legal services by 31 March each subsequent year.

40.      What should I do if I no longer wish to hold myself out as a barrister in connection with the supply of legal services under rS15 (previously known as rule 206 of the Code of Conduct)?

If you do not confirm or update your contact details and complete the declaration by 31 March 2018, your record will be automatically amended to that of an unregistered barrister and you will no longer be able to hold yourself out as a barrister in connection with the supply of legal services under rS15.

Alternatively please email Records@BarCouncil.org.uk to change your status to an unregistered barrister. Individuals who change their status to unregistered will not be able to re-register under rS15.

41.      Who should I contact if I have questions about rS15 (previously known as rule 206 of the Code of Conduct)?

You should contact the Ethical Enquiries Service on 020 7611 1307 or email Ethics@BarCouncil.org.uk

Alternatively you may find the following BSB Guidance for barristers without practising certificates (unregistered barristers) who supply legal services useful.

42.      I am a practising solicitor and an unregistered barrister. Do I need to notify the BSB if I intend to hold myself out as a barrister in connection with the supply of legal services?

Unregistered barristers who are practising as solicitors will remain entitled to hold themselves out as barristers, under rS14 of the Scope of Practice Rules in the BSB Handbook, and do not need to notify the BSB.

Entity authorisation

43.      Do I still need to pay my practising certificate fee if I become a BSB authorised body (entity)?

The Legal Services Act 2007 states that for reserved legal activities to be delivered through an entity arrangement, both the entity and the individual providing services must be authorised by an approved regulator. Therefore, to provide reserved legal activities through an entity you will still need an individual practising certificate as an employed barrister (or dual capacity if you wish to continue in self-employed practice). This is the case even if you are practising as a single person entity.

44.       If I work via a BSB authorised body (entity) can I continue my self-employed practice too?

You can continue to work in self-employed practice, but you will need to obtain a dual capacity practising certificate and make sure you comply with any BSB Handbook requirements for dual capacity practice.

Practice area information

Self-employed Bar

45.      Who will be asked practice area information?

Only those barristers who are renewing their practising certificates are required to provide practice area information. This requirement does not apply to new and returning practitioners, or pupils applying for their provisional practising certificate.

46.      What information will I be asked about practice area?

Barristers renewing their practising certificate must declare for the last full calendar year:

  • their areas of practice for the last full calendar year; 
  • the percentage of total income attributable to each area of practice for the last full calendar year; and
  • for those who are registered to undertake public access work, the percentage of total income derived from public access work for the last full calendar year.

This can mirror the information provided to the Bar Mutual Indemnity Fund (BMIF) when applying for professional indemnity insurance.

47.      Why do I need to provide my practice area information?

The rationale for this is set out in our consultation paper. In essence, collecting practice area information will improve our understanding of the market and ensure that future regulation and supervision activity is more effectively targeted. This information will also help us understand diversity at a practice area level and may inform our response when reviewing the continuing professional development plans submitted.

48.      How will you supervise and enforce the requirement to declare area of practice information?

We acknowledge that accurate declarations may be challenging. We will therefore take a proportionate approach to supervision and enforcement, and reserve any regulatory involvement to persistent non-compliance with the rule or declarations which are not made in good faith.

49.       Will you publish my practice area information?

Your areas of practice and percentage of income will not be published at this time.

50.       Who can I contact if I have any questions?

Records@barcouncil.org.uk or call 020 7242 0082

Employed Bar

51.       Who will be asked practice area information?

Only those barristers who are renewing their practising certificates are required to provide practice area information. This does not apply to new and returning practitioners, or pupils applying for their provisional practising certificate.

52.       What information will I be asked about my practice area?

Barristers renewing their practising certificate must declare for the last full calendar year:

  • their areas of practice for the last full calendar year; and
  • the percentage of time attributable to each area of practice for the last full calendar year

53.       Why do I need to provide my practice area information?

The rationale for this is set out in our consultation paper . In essence, collecting practice area information will improve our understanding of the market and ensure that future regulation and supervision activity is more effectively targeted. This information will also help us understand diversity at a practice area level and may inform our response when reviewing the continuing professional development plans submitted.

54.       Why are you using the BMIF categories?

To ensure we can use the information about the market for barrister's services effectively, we need comparable data between the employed and self-employed Bar. The self-employed Bar already provide this information to BMIF. Using the same categories for the employed Bar is the least burdensome approach for the Bar as a whole.

The list of the areas of practice from BMIF can be accessed on the below link:

https://www.barmutual.co.uk/downloads/

55.       I work for the CPS. Which categories apply to me?

You should allocate your time to all categories which are relevant. There is a "crime" category which may encompass the majority, or all of your work.

56.       I work for HMRC. Which categories apply to me?

You should allocate your time to all categories which are relevant. There is a "revenue" category which may encompass the majority, or all of your work.

57.       I work for the GLS. Which categories apply to me?

You should allocate your time to all categories which are relevant. There is a "public" category which may encompass the majority of your parliamentary or local government work. You should however also declare work in other relevant practice areas, which - depending on your work - could include work on "employment", "competition", immigration" or "European" matters.

58.       I work as a general in-house counsel. I advise on a huge variety of different issues, covering most or all of the practice areas listed. How should I complete my declaration?

We recognise that this is the case for some employed Barristers, We have therefore added an additional category for employed barristers - "General", as we recognise that for some employed barristers it can be challenging to categorise areas of practice as work can overlap into a number of different practice areas.

If you have selected "General", you will also be required to indicate those other BMIF categories which are most relevant. We have defined 'most relevant' as the top 3 categories, based on the percentage of time spent working in each area.

59.       How do I allocate my percentage of time?

Step 1

Calculate the number of average hours work over the year.

For example, I work on average eight hours a day, five days a week and 52 weeks a year.

8 x 5 = 40 hours a week

40 x 52 = 2088 hours work over a year

Step 2

Estimate the number of hours spent over the year on each area of practice.

For example, 1250 hours on crime and 840 hours on tax.

Step 3

Divide the number of hours for each area of practice by the number of hours worked in the year. Multiply this by 100.

Example

I worked approximately 2088 hours over the year (based on an average of 40 hours a week). I spent about 1250 hours on crime and 840 on tax over the year.

Crime - 1250 / 2088 x 100 = 60%

Tax - 840 / 2088 x 100 = 40%

60.       I work in a law firm. How should I categorise my areas of practice and time attributable to each?

If you work in a law firm, you may wish to use your case management system to declare the areas of practice which your work has covered and the percentage of time you have spent for each area.

61.       Will you publish my practice area information?

Your areas of practice and percentage of income will not be published at this time.

62.      How will you supervise and enforce the requirement to declare area of practice information?

We acknowledge that accurate declarations may be challenging. We will therefore take a proportionate approach to supervision and enforcement, and reserve any regulatory involvement to persistent non-compliance with the rule or declarations which are not made in good faith.

Dual capacity barrister

63.      I am a dual capacity barrister. What information do I need to provide?

You should provide the information required of both the employed and self-employed Bar, relevant to your practice. Please see the above FAQs for more information.

A list of the BMIF areas of practice can be accessed on the below link:

https://www.barmutual.co.uk/downloads/

Youth Court declarations

64.Why am I required to register that I am doing Youth Court work?

The BSB is a risk-based regulator, which means that we concentrate our resources where there is most risk. The BSB considers Youth Court work to be a high-risk area of work following our Youth Proceedings Advocacy Review in 2015. This Review found that standards of advocacy in the Youth Court were variable and that therefore the interests of some of the most vulnerable people within the criminal justice system were not being adequately represented. As a response to the Review, the BSB published the Youth Proceedings competences and guidance ("the competences") to show the specific skills, knowledge and attributes that barristers working with young people should have.

Following the introduction of the competences in October 2017, the BSB took the decision that all barristers who are currently working in the Youth Court, or those who intend to do so in the next 12 months, will be required to register for Youth Court work when completing the annual Authorisation to Practise (AtP) process to renew their practising certificates from early 2018. In registering for Youth Court work, barristers will be required to declare that they meet the requirements set out in the competences. This requirement applies to pupils in their second six.

Introducing registration will allow the BSB to collect information about who is working in the Youth Court. This will mean that we are able to supervise these barristers more closely. For example, by looking at how their Continuing Professional Development (CPD) has equipped them with the skills they need for this work.

65. What are the Youth Proceedings Competences and Guidance?

The Youth Proceedings competences contain a set of specific skills, knowledge and attributes that are expected of all barristers working with young people, accompanied by guidance. You can read the competences and guidance on the BSB website.

For more information, contact supervision@barstandardsboard.org.uk.

66. Who is required to register for Youth Court work?

The requirement is for all barristers who have accepted instructions within the last 28 days to work in the Youth Court, or those who intend to do so in the next 12 months. Barristers will be asked as part of the annual Authorisation to Practise process in MyBar. Pupils, third six pupils and those who have undertaken work since AtP and were not registered to do so will also be expected to register.

67. What question(s) about my Youth Court work will I be asked when I renew my practising certificate during the AtP process on the MyBar portal?

At AtP renewal you will be asked a single question about whether you have accepted instructions for Youth Court work within the last 28 days, and/or intend to undertake it in the next 12 months. By answering yes to this question, you are declaring that you meet the requirements set out in the Youth Proceedings competences and you will appear as registered for Youth Court work on the BSB's Barristers Register.

The BSB may choose to review barristers who are registered for Youth Court work. This may, for example, mean looking at your CPD records as part of our annual spot check, or by asking you to provide evidence in support of your declaration of competence.

68. What question(s) about Youth Court work will I be asked when I apply for my first practising certificate on the MyBar portal?

When applying for your first practising certificate you can go to a section of MyBar to state that you have accepted instructions within the last 28 days to work in the Youth Court, and/or that you intend to do this work in the next 12 months.

It is important to remember that by declaring yourself as intending to do the work, or having undertaken Youth Court work within the last 28 days, you are declaring that you meet the requirements set out within the competences. This does not necessarily mean that you are declaring that you are competent to undertake all cases within the Youth Court. It means that you are declaring that you meet the competences as they apply to the cases in which you are, or are likely to be, instructed. The fact that you are registered for Youth Court work will appear on the BSB's Barristers Register.

69. What question(s) about Youth court work will I be asked when I apply for a practising certificate on MyBar following a period of absence (eg: parental leave or sickness leave)?

You will be asked whether you have accepted instructions within the last 28 days and/or, or that you intend to do this work in the next 12 months.

It is important to remember that by declaring yourself as intending to do the work, you are declaring that you meet the requirements set out within the competences. This does not necessarily mean that you are declaring that you are competent to undertake all cases within the Youth Court. It means that you are declaring that you meet the competences as they apply to the cases in which you are, or are likely to be, instructed. The fact that you are registered for Youth Court work will appear on the BSB's Barristers Register.

70. I am a pupil. Do I need to register for Youth Court work?

Yes. When you register for your provisional practising certificate with Pupillage Records, there will be a voluntary question about whether you anticipate undertaking Youth Court work during the second six of your pupillage.

You should register with our Pupillage Records Team if you did not make the declaration and subsequently accept instructions for a case in the Youth Court. This can be done by emailing pupillagerecords@barstandardsboard.org.uk.

71. I am currently completing a third six. Do I need to register for Youth Court work?

Yes, if you have accepted instructions within the last 28 days for work in the Youth Court, or if you intend to do so in the next 12 months. You should register through the MyBar portal.

72. I undertook Youth Court work in the last 12 months but I don't intend to do so in the next 12 months, do I still need to register for Youth Court work?

No, you do not have to register unless you intend to work in the Youth Court in the next 12 months.

73. I am a family practitioner. Do I need to register for Youth Court work?

Not unless you have accepted instructions for criminal proceedings in the Youth Court within the last 28 days and/or if you intend to do so in the next 12 months.

You should note that the BSB Handbook requires that you must be competent to undertake all work that you take on. The BSB's Youth Proceedings competences and guidance may contain information which could be helpful for you if you work with young people in non-criminal proceedings.

74. I recently undertook work in the Youth Court when I was not expecting to do so and as a result, I had not registered with the BSB to undertake Youth Court work. What should I do now?

You should register for Youth Court work within 28 days of accepting instructions if you have not already done so.

If you are a fully qualified barrister, you can do this through MyBar. If you are a pupil, you can do this by emailing pupillagerecords@BarStandardsBoard.org.uk.

75. I am solicitor who undertakes Youth Court work. What am I required to do?

The Solicitors Regulatory Authority regulates solicitor advocates. Information is available on their website: http://www.sra.org.uk/solicitors/cpd/youth-court-advocacy.page.

76. When and where will the fact that I am registered to undertake Youth Court work be available publicly?

Your registration to undertake Youth Court work will show against your name and record on the BSB's Barristers Register. The register is publicly available on the BSB website. You may unregister at any time, by using your MyBar account.

The fact that you are registered to undertake Youth Court work will start to appear on the Barristers' Register from May 2018.

Any registrations and declarations made after May 2018 will be updated on the Barristers' Register within 24 hours.

77. How do I deregister?

You should deregister if you are no longer undertaking Youth Court work and do not intend to do so in future. You can do so through MyBar. This will be updated on the BSB register within 24 hours.

78. If the BSB asks me to demonstrate my competence, how might I do so?

In line with our new approach to CPD, there are many ways to demonstrate your competence to practise in the Youth Court, and it is your choice about how to do so. As a non-exhaustive list you could consider:

  • Your skills and knowledge from academic or vocational qualifications, pupillage or previous work experience;
  • Resources you have read (these could be from the BSB's guidance, from online resources such as the toolkits available on the Advocates Gateway or from your own research);
  • Any additional formal or informal training you have undertaken, including shadowing;
  • Any other learning or knowledge which you consider to be relevant.

79. Where do I get more information?

If you require any further information or have any questions, please contact the Supervision Team at the BSB by emailing supervision@barstandardsboard.org.uk

80. I have a pupil who may do Youth Court work; what do they need to do?

If your pupil intends to do work in the Youth Court before they get their full practising certificate, they must register this fact with the BSB before they do so or within 28 days of accepting instructions. They can register by emailing the Pupillage Records team pupillagerecords@BarStandardsBoard.org.uk. They can also unregister at any time using the same email address.

If your pupil does not intend to undertake Youth Court work, they do not need to anything.

It may be that they do not know whether they will undertake Youth Court work during their pupillage, or in the future. If this is the case and they subsequently undertake Youth Court work, they have up to 28 days after accepting instructions to register with the BSB. 

The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 ("the Regulations")

81. Where can I find a copy of the Regulations?

You can find the Regulations here: http://www.legislation.gov.uk/uksi/2017/692/made

These Regulations came into force on 26 June 2017.

82. Why does the Bar Standards Board require me to declare if my work falls within the scope of the Regulations?

The Regulations impose certain obligations on the Bar Standards Board ("the BSB"), including to:

  • carry out risk-based supervision (regulation 17);
  • ensure that only those who are fit and proper persons are conducting work that falls within the scope of the Regulations (regulation 26); and
  • provide a register of trust or company service providers ("TCSPs") to HMRC (regulation 54).

To enable us to comply with these obligations we need to know which barristers are undertaking work that falls within the scope of the Regulations.

Also, from 2018, the BSB is subject to an oversight regulator called the Office for Professional Body Anti-Money Laundering Supervision ("OPBAS"). OPBAS will allocate its costs between the organisations that it supervises. Collecting data about how many barristers are engaged in relevant work will enable us to ensure that OPBAS costs are allocated to the Bar proportionately.

If you undertake work that falls within the scope of the Regulations then you have specific obligations under the Regulations.

For all these reasons, it is important for you to understand whether the work that you do falls within the scope of the Regulations and make an accurate declaration about whether you are undertaking, have current instructions or in the last 12 months have undertaken work which falls within the scope of the Regulations.

83. Does the work I do fall within the scope of the Regulations?

Regulations 11 and 12 set out who is subject to the Regulations: http://www.legislation.gov.uk/uksi/2017/692/made

You should read the Regulations carefully to help you to decide whether the work you are doing falls within their scope. In particular, you should refer to the following paragraphs:

11 (d)Tax advisermeans a firm or sole practitioner who by way of business provides advice about the tax affairs of other persons, when providing such services.

12. (1) In these Regulations, "independent legal professional" means a firm or sole practitioner who by way of business provides legal or notarial services to other persons, when participating in financial or real property transactions concerning:

(a) the buying and selling of real property or business entities;

(b) the managing of client money, securities or other assets;

(c) the opening or management of bank, savings or securities accounts;

(d) the organisation of contributions necessary for the creation, operation or management of companies; or

(e) the creation, operation or management of trusts, companies, foundations or similar structures, and, for this purpose, a person participates in a transaction by assisting in the planning or execution of the transaction or otherwise acting for or on behalf of a client in the transaction.

12 (2) In these Regulations, "trust or company service provider" means a firm or sole practitioner who by way of business provides any of the following services to other persons, when that firm or practitioner is providing such services:

(a) forming companies or other legal persons;

(b) acting, or arranging for another person to act:

(i) as a director or secretary of a company;

(ii) as a partner of a partnership; or

(iii in a similar capacity in relation to other legal persons;

(c)providing a registered office, business address, correspondence or administrative address or other related services for a company, partnership or any other legal person or legal arrangement;

(d)acting, or arranging for another person to act, as:

(i) a trustee of an express trust or similar legal arrangement; or

(ii) a nominee shareholder for a person other than a company whose securities are listed on a regulated market.

HM Treasury has decided that there should be one set of guidance for the legal sector in England, Wales, Scotland and Northern Ireland. The BSB has been working with the other legal regulators and representatives from the professions to develop the joint guidance, which is available here: https://www.barstandardsboard.org.uk/regulatory-requirements/anti-money-launderingand-counter-terrorist-financing/

You should read this guidance to help you to decide whether the work that you do falls within the scope of the Regulations.

HM Treasury has confirmed that the following would not generally be viewed as participation in a financial transaction and therefore not within the scope of the Regulations:

  • payment on account of costs to a legal professional or payment of a legal professional's bill;
  • provision of legal advice;
  • participation in litigation or a form of alternative dispute resolution.

The Bar Council has produced additional guidance with some case studies to further assist barristers, chambers and BSB entities in deciding whether the work that they do falls within the scope of the Regulations: http://www.barcouncilethics.co.uk/documents/money-laundering-terrorist-financing/

If, after reading the Regulations and the guidance, you are still unsure about whether the work that you do falls within the scope of the Regulations, you can contact the Bar Council Ethical Enquiries Service: http://www.barcouncilethics.co.uk/ethical-enquiriesservice/

84. Currently, I don't do work that falls under the Regulations, but the cab rank rule means that I might do in the future. What should I declare?

We only require you to confirm annually, at Authorisation to Practise ("AtP"), whether you are undertaking, have current instructions or in the last 12 months have undertaken work which falls within the scope of the Regulations.

Regulation 56 says that you must not act as a trust or company service provide ("TCSP": see Trust or Company Service Provider guidance) unless you are registered with HMRC: http://www.legislation.gov.uk/uksi/2017/692/made

If you commence work as a TCSP after AtP, you should contact supervision@barstandardsboard.org.uk to ensure that you are included on the register.

85. Where can I get help in understanding my obligations under the Regulations?

HM Treasury has decided that there should be one set of guidance for the legal sector in England, Wales, Scotland and Northern Ireland. The Bar Standards Board ("BSB") has been working with the other legal regulators and representatives from the professions to develop the joint guidance, which is available here: https://www.barstandardsboard.org.uk/regulatory-requirements/anti-money-launderingand-counter-terrorist-financing/

The Bar Council has produced additional guidance with some case studies to further assist barristers, chambers and BSB entities in deciding whether the work that they do falls within the scope of the Regulations: http://www.barcouncilethics.co.uk/documents/money-laundering-terrorist-financing/

If, after reading the Regulations and the guidance, you are still unsure about whether the work that you do falls within the scope of the Regulations, you can contact the Bar Council Ethical Enquiries Service: http://www.barcouncilethics.co.uk/ethical-enquiriesservice/

86. What is a trust or company service provider ("TCSP")?

TCSPs are defined in the Regulations as follows: http://www.legislation.gov.uk/uksi/2017/692/made

12 (2) In these Regulations, "trust or company service provider" means a firm or sole practitioner who by way of business provides any of the following services to other persons, when that firm or practitioner is providing such services:

(a) forming companies or other legal persons;

(b) acting, or arranging for another person to act:

(i) as a director or secretary of a company;

(ii) as a partner of a partnership; or

(iii) in a similar capacity in relation to other legal persons;

(c) providing a registered office, business address, correspondence or administrative address or other related services for a company, partnership or any other legal person or legal arrangement;

(d) acting, or arranging for another person to act, as:

(i) a trustee of an express trust or similar legal arrangement; or

(ii) a nominee shareholder for a person other than a company whose securities are listed on a regulated market.

87. Why do you need a separate declaration for trust or company service providers ("TCSPs")?

Regulation 54 requires HMRC to maintain a register of all TCSPs and Regulation 56 requires all TCSPs to be registered with HMRC: http://www.legislation.gov.uk/uksi/2017/692/made

If you declare that you carry out work as a TCSP, you do not need to register directly with HMRC. Instead, we have an obligation to submit the following information about you to HMRC so that they can include you on the register:

  • Names of BSB entities or individuals acting as a TCSP.
  • Practising address.
  • Confirmation that relevant persons are fit and proper (with reference to Regulation 26).

This data is already publicly available on the BSB website. This arrangement will be governed by a Memorandum of Understanding between the BSB and HMRC.

Regulation 56 says that you must not act as a TCSP unless you are registered with HMRC: http://www.legislation.gov.uk/uksi/2017/692/made

If you commence work as a TCSP after Authorisation to Practise you should contact supervision@barstandardsboard.org.uk to ensure that you are included on the register.

88. Where is the authority in the Regulations for the BSB to disclose information to HMRC and for it to use this to maintain the TCSP register?

Regulation 52(1) provides legal authority for professional body supervisors (such as the BSB) to disclose information to HMRC for a function under these Regulations. Regulation 54(2)(c) provides that HMRC has a duty to maintain a register of relevant persons who are TCSPs and not registered with the FCA. The combined effect of regulation 52 and 54 creates an express gateway by which information may be passed.

89. Will HMRC be publishing the TCSP register and who will the data be shared with?

While HMRC has the power to publish all or part of the register, it currently has no intention of doing so publicly. HMRC intends to share the data with Law Enforcement Agencies, who will be able to use the information for their enforcement activity. Law enforcement agencies include the Police, the National Crime Agency, Ministry of Defence Police, the National Fraud Intelligence Bureau, the Office of Security and Counter Terrorism and the Serious Fraud Office. HMRC does not intend to communicate directly with barristers or BSB entities on the register, although information held by HMRC for the purpose of one function may be used by HMRC for other HMRC functions.

HMRC is subject to the requirements of the Freedom of Information Act 2000.

Supervisors (such as the BSB) will only be able to see data about their own regulated individuals or entities and will not have access to information about other supervisors' registered individuals or businesses.

90. What is a DBS basic check? Do I need to obtain one? Do I need to submit it to the Bar Standards Board? How long does it take to obtain one? How much does it cost?

A DBS basic check is a criminal record check provided by the Disclosure and Barring Service ("DBS") which shows unspent convictions and conditional cautions.

The Regulations impose certain obligations on the Bar Standards Board ("the BSB"), including to ensure that only those who are fit and proper persons are conducting work that falls within the scope of the Regulations (regulation 26).

The DBS basic check is a one-off requirement. Barristers who have already obtained a Basic Disclosure Check (as it was formerly known) or a Disclosure and Barring Service (DBS) check since being Called to the Bar will not be required to obtain a new check.

Barristers who have not obtained a basic check and have declared that they are currently undertaking or have current instructions for work which engages the Regulations, or whose practice regularly engages the Regulations, are required to obtain a check before 26 June 2018.

Barristers who have not declared at Authorisation to Practise but who subsequently accept instructions for work within the scope of the Regulations must request a DBS basic check upon accepting instructions and only begin the work after the result of the check has been received.

You are not required to send the check to the BSB, but should be prepared to do so if asked.

You can obtain a basic check yourself. The DBS provide this service for those who live in England and Wales. The check costs £25. Most checks will be processed in 14 days. More details can be found here: https://www.gov.uk/government/publications/basicchecks

If you live in Scotland, you can request a basic disclosure from Disclosure Scotland. More details can be found here: https://www.mygov.scot/basic-disclosure/apply-forbasic-disclosure/

If you live elsewhere, please contact supervision@barstandardsboard.org.uk

91. What is a "relevant offence" for the purposes of the Regulations?

See Schedule 3 of the Regulations: http://www.legislation.gov.uk/uksi/2017/692/made

You should only answer "yes" if you have any UNSPENT convictions on the list on the above link


[1] Barristers registered under rS15 of the Scope of Practice Rules in the BSB Handbook who are holding themselves out as a barrister whilst supplying legal services will not require a practising certificate. This category of barristers is not entitled to undertake any reserved legal activities.

[2] An authorised body is a body that has been authorised by an approved regulator.

[3] This requires a barrister to work with a 'qualified person' for the supply of legal services to the public until such time as he is of three years' standing, or have this requirement waived by the BSB.