'Gratuitous' regulation

We all need to be careful what we say (and republish) on social media. Lawyers more than most. But aspects of the Bar Standards Board’s new guidance on social media strike me as questionable. 

Barristers will face potential disciplinary proceedings if they engage in ‘gratuitous’ attacks on the justice system. What does that actually mean?

Many lawyers would argue that our justice system is hopelessly dysfunctional, much like so many other components of our public realm. Such an observation hardly counts as politically contentious any more. Many traditionally conservative media concede the point, in what has been facetiously dubbed as ‘the great noticing’. (Just the other day, for example, the Telegraph told us that ‘Britain is broken – and nobody can be bothered to do anything about it’.)

Were a barrister to make such a claim about justice, or take a dig at our crumbling courts, or spiralling case backlogs, could they now end up before the beak?

Don’t be daft, I hear you retort. But, with reference to the guidance, it is hard to see why not. The definition of ‘gratuitous’ is ‘done without good reason’, or ‘uncalled for’. So the BSB has taken upon itself to decide whether statements made by a barrister in a personal capacity that contain an honestly held opinion about the justice system are ‘uncalled for’. Perhaps it should get back in its box.

The BSB claims the guidance strikes a balance between barristers’ human rights and their professional obligations – and the Bar Council agrees. ‘The guidance seeks to make clear that it is the manner in which barristers express their views that is more likely to concern us rather than the substance of that view (although the substance of a barrister’s view may also raise regulatory issues),’ says the BSB.

I would not find this especially reassuring. Some barristers are certain to be deterred from engaging in legitimate debates on the grounds that if you do not engage, you can’t fall foul of such a nebulous proscription.

Once again, the vexed question arises of how far regulators should go in policing behaviour in private life. ‘How far is too far?’ remains a question yet to be definitively answered.