Annexe D - The Practising Certificate Regulations

The Authority to Issue Practising Certificates

1. The Access to Justice Act 1999 (s.46) included provision for the Bar Council to make rules prohibiting barristers from practising unless authorised by a certificate issued by the Bar Council (a ‘practising certificate’). The rules may include provision for the payment of different fees by different descriptions of barristers, but the Council may not set fees with a view to raising a total amount in excess of that applied by the Council for the purposes of the regulation, education and training of barristers, and those wishing to become barristers and for any other purpose approved by the Lord Chancellor under sub-section (3)(a) of s.46 of the Access to Justice Act 1999.

2. No provision included in the rules shall have effect unless approved by the Lord Chancellor.

3. Section 46 of the Access to Justice Act 1999, as amended by Order by statutory instrument with effect from 31 January 2001, is at Appendix 1 to these rules.

Application

4. These rules shall apply to all barristers and registered European lawyers holding themselves out as offering legal services as barristers to the public or to their employer. They shall not apply to non-practising barristers.

The Calculation of Income from Practising Certificates

5. The income to be raised by the Bar Council from Practising Certificate Fees shall not exceed the forecast expenditure for the year ahead starting 1 January each year to be applied to the activities and purposes set out below, less any subventions for those purposes received from the Inns of Court.

6. The activities, including education and training, to which practising certificate fees shall be applied shall be as follows:

(a) The formulation and implementation of rules and regulations;

(b) The development and dissemination to the profession of guidance, recommendations and other standards (whether binding or advisory) contributing to the control, government and direction of the profession and the way in which it practises: those activities shall include the definition, review and supervision of the standards of professional conduct and work expected of members of the profession;

(c) Participation in the legislative process in relation to proposals relevant to the organisation or conduct of the profession.

(d) Law reform work: that is, participation in the legislative process in relation to proposals falling outside paragraph 5(c);

(e) Support for the administration of provision of legal services to the public pro bono;

(f) the furtherance of human rights;

(g) the development of international relations.

7. The maximum sum to be raised from Practising Certificate Fees shall include, as agreed by the Lord Chancellor, the annual forecast full cost of work in the following areas:-

(a) Activities which are entirely regulatory:

(i) Professional Standards
(ii) Professional Conduct and Complaints
(iii) Equal Opportunities
(iv) Records

(b) Education and Training

(c) Activities qualifying under the Statutory Instrument laid under s.46 sub-section (3)(a) of the Access to Justice Act 1999:

(i) Human Rights and Pro Bono administration
(ii) Law Reform

8. The maximum sum to be raised from Practising Certificate Fees shall include, as agreed by the Lord Chancellor, the proportion as shown of the annual forecast full cost of work in the following areas qualifying as regulatory activity or for purposes agreed under the Statutory Instrument laid under s.46 sub-section (3)(a) of the Access to Justice Act 1999:

(a) Legal Services 80%
(b) International Relations 90%
(c) Policy 75%
(d) Remuneration 80%
(e) Public Affairs 30%
(f) Employed Bar 70%
(g) Young Bar 60%
(h) Information Technology 60%

9. For the purpose of calculating the maximum sum to be raised from Practising Certificate Fees, Administration costs shall be added in proportion to the cost of activities set out in paragraphs 8 and 9, to include the following:

Chairman’s Office
Executive Office
Council and General Management Committee work
Finance
Library/Registry
Print and Distribution
Reception and Meeting Rooms
Publications
Website
Contingency funds up to 3% of total expenditure
Provision for capital expenditure not covered by depreciation

The Issue of Practising Certificates:

10. Subject to paragraphs 14 and 15 of these Rules, the Bar Council shall issue Full Practising Certificates to all barristers and registered European lawyers notifying the Bar Council that they wish to commence or re-commence practice and annually thereafter on each renewal date.

11. A Practising Certificate shall be valid until the due date for renewal of the Certificate unless:

(a) the barrister's status changes; or

(b) the barrister is disbarred or suspended from practice as a barrister by a Disciplinary Tribunal, Summary Procedure Panel, Fitness to Practice Panel or Interim Suspension Panel.

12. The Bar Council shall amend a Practising Certificate if a barrister changes his category from independent practice to employed practice or vice versa provided that the barrister has paid any additional amount to cover the difference in fee applicable to each category.

13. The Bar Council shall endorse a Practising Certificate to reflect any qualification restriction or condition imposed on the barrister by the Bar Council or by a Disciplinary Tribunal, Summary Procedure Panel, Informal Panel, Interim Suspension Panel or Fitness to Practise Panel.

14. The Bar Council shall not issue a Practising Certificate to any barrister who has been disbarred or is subject to an order suspending him from practice.

15. The Bar Council may refuse to issue a Practising Certificate to a barrister if it is satisfied that the barrister:

(a) has failed to comply with the training requirements applicable to him at the date of his Call to the Bar;

(b) has failed to comply with any applicable requirements of the Continuing Professional Development Regulations;

(c) has not provided in writing to the Bar Council details of the current address(es) with telephone number(s) of the chambers or office from which he supplies legal services and (if he is an employed barrister) the name, address, telephone number and nature of the business of his employer;

(d) has not paid to the Bar Council the Practising Certificate Fee currently prescribed by the Bar Council for barristers of his/her description.

(e) has failed to pay the appropriate insurance premium so as to be insured with the Bar Mutual Indemnity Fund against claims for professional negligence, as required by the Code of Conduct;

(f) would be practising in breach of the provisions of paragraphs 203, 204, 205, 401, 501, 502 or 503 of the Code of Conduct.

The Renewal of Practising Certificates

16. The due date for the payment of the Practising Certificate Fee for barristers in independent practice and registered European lawyers in independent practice shall be 1st January each year. The due date for the payment of the Practising Certificate fee for employed barristers and registered European lawyers in employment shall be 6th April each year.

Practising Certificate Fees

17. Each year, the Bar Council shall decide the appropriate Practising Certificate Fees for the following year so that the projected income from these fees shall not exceed the total amount calculated under paragraphs 8 to 10 of these rules

18. The Bar Council may set different fees for different categories of barristers reflecting, for example, the barrister's seniority and whether he is in independent or employed practice.

19. The Practising Certificate Fee following Call to the Bar or registration as a Registered European Lawyer shall become due on the relevant renewal date of the year following the year of Call or registration, as appropriate to each category of barrister or Registered European Lawyer.

20. The Bar Council shall provide four weeks' notice of the date by which payment of the Practising Certificate Fee is due and shall confirm in writing the validity of the Practising Certificate following payment of the Practising Certificate Fee. Notification to practising barristers of the Practising Certificate Fee shall include a statement of any separate voluntary subscription to the Bar Council, other than for a Practising Certificate.

21 On application of individual barristers, the Bar Council may reduce the Practising Certificate Fee in recognition of certified periods of continuous absence from practice exceeding three months in the previous year. The Bar Council may reduce the full Practising Certificate Fee payable by those whose certified gross fee income or salary for the previous year is less than such annual amount as the Council may decide from time to time. Applications for such reduction must be received no later than the end of the practising certificate year following the year in which the absence occurred or low fee income received.

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Non-Payment of the Practising Certificate Fee

22. A practising barrister who fails to pay the Practising Certificate Fee within one month of the due date shall be liable to a penalty to cover the administrative costs of the Bar Council in dealing with the delay in payment. If the fee is paid later than one month and earlier than two months following the due date, the penalty shall amount to 15% of the full fee applicable to his seniority and status. If the fee is paid later than two months after the due date, the penalty shall be 30% of that fee. The full penalty applies even if the barrister has been granted or is eligible for any reduction of the full Fee under these rules.

23. The Bar Council shall notify any practising barrister who has not paid the Practising Certificate Fee by the due date that if the Fee is not paid within one month of the due date, he shall become liable for the surcharge under paragraph 22 and may be reported to the Professional Conduct and Complaints Committee for that Committee to investigate and consider whether there has been a breach of paragraph 202 of the Code of Conduct.

24. The Bar Council shall report all barristers who it has reason to believe are practising and who have not paid the Practising Certificate Fee and, where applicable, the penalty to the Professional Conduct and Complaints Committee unless the Fee and, where applicable, the penalty are both paid in within 3 months of the due date provided that the barrister has not incurred the penalty for more than two years out of the last five in which case his default may be reported to the Professional Conduct and Complaints Committee within such shorter time as may appear appropriate in all the circumstances.

25. The Bar Council may, with the consent of the Chairman of the Professional Conduct and Complaints Committee, withdraw any complaint made under paragraph 24 where it is satisfied that:

(a) the Fee and surcharged have been paid within 3 months of the due date;

(b) the barrister was not in fact practising during the relevant period; or

Appendix to ANNEX D
ACCESS to JUSTICE ACT
s.46 Bar Practising Certificates

1. If the General Council of the Bar makes rules prohibiting barristers from practising as specified in the rules unless authorised by a certificate issued by the Council (a “practising certificate”), the rules may include provisions requiring the payment of fees to the Council by applicants for practising certificates.

2. Rules made by virtue of subsection (1) –

(a) may provide for the payment of different fees by different descriptions of applicants, but

(b) may not set fees with a view to raising a total amount in excess of that applied by the Council for the purposes of:

(i) the regulation, education and training of barristers and those wishing to become barristers;

(ii) the participation by the Council in law reform and the legislative process;

(iii) the provision by barristers and those wishing to become barristers of free legal services to the public;

(iv) the promotion of the protection by law of human rights and fundamental freedoms; and

(v) the promotion of relations between the Council and bodies representing the members of legal professions in jurisdictions other than England and Wales.

3. The Lord Chancellor may by order made by statutory instrument:

(a) amend subsection (2)(b) by adding to the purposes referred to in it such other purposes as the Lord Chancellor considers appropriate, or

(b) vary or revoke an order under paragraph (a).

4. No order shall be made under subsection (3) unless –

(a) the Lord Chancellor has consulted the Council, and

(b) a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

5. No provision included in rules by virtue of subsection (1), and no other provision of rules made by the Council about practising certificates, shall have effect unless approved by the Lord Chancellor.

6. The Council shall provide the Lord Chancellor with such information as he may reasonably require for deciding whether to approve any provision of rules made by the Council about practising certificates.