02 February 2015

Frequently asked questions - Authorisation to Practise 2017/18

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 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, from income earned as a barrister during the 2015/16 financial year,
    • 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 Barrister Connect to create your online account and apply for your 2017/18 certificate from Thursday 16 February 2017.

In order to access your account, you will need a user number and a password. If you do not have these, please call the Records Team on 020 7242 0934 or email Records@BarCouncil.org.uk

4.         When is the deadline for applying?

Barristers have until Friday 31 March 2017 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 Sunday 30 April 2017 will no longer appear on the BSB Barristers' Register and will not be authorised to practise. From 2 May 2016, 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 www.barristerconnect.org.uk and click 'Apply for a practising certificate'. You will require your ID Number, which can be found on the renewal notice, and your password. If you have forgotten your password, please click on the forgotten password link on the home page.

If you do not hold a current practising certificate, please complete the authorisation form on the BSB website.

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

Barrister Connect includes context based online help and guidance for users completing applications.  There is also a video guide which will take you through the process.

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

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

If you need the application form in a different format please contact the Records Team on 020 7242 0934.

9.         How do I find out how much my 2017-18 Practising Certificate Fee (PCF) will be?

The PCF varies by band of income barristers fall within, from income earned as a barrister during the 2015/16 financial year

The 'Schedule of Practising Certificate Fees 2017-18 policy and guidance', outlines the fees for the profession. If you are returning to practice part-way through the year, please call the Records Team on 020 7242 0934 for advice regarding your pro rata PCF.

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

Applications must be made online through www.barristerconnect.org.uk and will take approximately ten minutes to complete online. For those with a disability who are unable to complete the process online, a paper based version is available.

Individuals returning to practice part way through the practising certificate year will need to complete the authorisation form on the BSB website.

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 Barrister Connect 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 Barrister Connect account is incorrect, I am unable to apply for a practising certificate until it is amended, what should I do?

Change of status

If you havechanged your practising status (i.e. moved from self-employed to employed), please complete and return an authorisation form, which can be found on the BSB website.

Once your details have been updated the Records Team will confirm your change of status with you and you will be able to log on and apply for your practising certificate.

Change of practising address

If you have changed your practising address please complete the change of practising address form on the BSB website.  Once your details have been updated you will be able to log on and apply for your practising certificate.

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 his 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 Bar Standards Board'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) shallrevoke 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 2017 ATP process you will be declaring compliance for the period 1 January 2016-31 December 2016.  During this period the previous EPP CPD requirements were 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 complete the prescribed number of hours and should retain a copy of their record card 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 completed your 2016 CPD by 31 December 2016 or if you have been granted an extension of time. False declaration identified through the spot checking process could lead to disciplinary action.

www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/continuing-professional-development-until-31-december-2016/

The 2018 ATP process will be the first year EPP barristers will be required to declare compliance with the new EPP requirements.

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 2014 or 2015 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 Barrister Connect 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 2017, 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.       DoI 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.


[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.