The issue of quality assurance has become one of the most important issues in professional regulation. Clients’ expectations are changing. Consumers are more willing to challenge poor service and have a greater tendency to question professional opinion. They want to know whether their lawyer is competent at what he or she does. In this article we seek to outline the Bar Standards Board’s (BSB) commitment to quality assurance and to explain why it is a priority. We will also describe the way in which the BSB proposes to address this question and how it fits with other initiatives that are being carried on by other bodies.

Barristers have a vital role in the justice system. Courts rely on barristers to be up to date in their knowledge of the law and to be competent advocates. Clients rely on the advice and services that they receive from barrister because it can affect their rights, liberty, family and financial position. The BSB must ensure in the public interest that barristers are performing to a consistently high standard.

Research that the BSB has undertaken makes it clear that most clients and solicitors rate very highly the service that they obtain from the Bar. But this is not a reason for complacency. Nor does the BSB consider that the old view that the market sorts out the best performers is necessarily right. It used to be the view that barristers were instructed by professional clients who would not re-instruct those who were ineffective who would, in due course, leave the Bar.

While it is clear that the market is generally adept at identifying the best barristers, it is not necessarily true that it will weed out the ones who perform less well. Anecdotal evidence from barristers and judges makes it clear that there are people in some areas of the Bar who, in the view of colleagues at least, are not providing the service that their clients need. The advent of public access means that the barrister is no longer always instructed by “sophisticated clients”. Moreover, solicitors often instruct outside their own field of expertise and, it has been argued, weaker solicitors tend to instruct inadequate barristers. Market forces are not a complete answer.

The BSB’s approach, therefore, is that it needs to be able to identify the under-performing barrister, to help them to improve and, as a last resort or where the risk to the public is too high, prevent under-performing barristers from practising.

So what is on the BSB‘s quality agenda?

The first step in developing a quality assurance system is to identify the core competencies, standards and values expected of a ‘good barrister’. The Bar’s Code of Conduct, the Written Standards for the Conduct of Professional work, together with the ad-hoc guidance on best practice issued by the BSB provides a strong basis for identifying these standards, but there is no stand-alone document which draws the standards together which is accessible to both the public and the profession and which identifies exactly what is expected of a competent barrister. The BSB has decided to develop such a document, which will underpin the rest of its work on quality.

After defining these standards, the BSB needs to find a way of ensuring that barristers meet them. We think that the most sensible way of dealing with this will, in the first instance, be through Chambers and through feedback from clients and others. The aim will be to encourage barristers and Chambers to seek feedback as to how they are meeting those standards and where they need to improve. The BSB would then seek to monitor that Chambers were doing this. This works in the interests of barristers: all service providers need to be aware of how they are viewed by their clients. By receiving this information they, and Chambers, are likely to benefit by providing a better service and gaining more work. Many Chambers currently adopt this approach.

The BSB considered more heavy-handed methods of looking at quality, including peer review and revalidation. It felt that, at the moment, it would be wrong to introduce these. They would be costly to implement and would not necessarily achieve any more than a Chambers-based approach will.

There are two other areas where further quality assurance may be needed. First, there are concerns that pupillage does not necessarily provide a consistent quality of training and consistent outcomes for pupils. Many Chambers provide outstanding pupillages. There are others where there may be concerns about the level of training that is provided. The BSB will be reviewing the pupillage process and looking particularly at the training of pupil-supervisors, the contents of pupillages and the mechanisms for assessing whether or not an individual has satisfactorily completed pupillage.

It has also been suggested that CPD can be an important guarantee of quality. The BSB doubts that CPD in its present form provides this. First, there needs to be greater quality assurance of the courses themselves to ensure that they are at the right level. Secondly, we need to be clear that barristers actually attend courses that suit their needs. A different approach may be needed than the mechanistic “12 hours” requirement. The BSB will be looking at this also.

Finally, the BSB will be looking at ways of identifying risk. In every profession there will be a small number of practitioners who are a danger to the public. We need to establish ways of identifying such practitioners. This may involve protocols with other regulators, developing systems to identify risk factors and taking another look at whether there should be a professional requirement to report misconduct.

This latter initiative will seek to learn from the experience of the Bar Council’s recently introduced Bar Quality Advisory Panel (BQAP). Under this scheme, members of the judiciary and solicitors will be able to refer the poor performance of a barrister to the BQAP. The Panel has no disciplinary powers and will be able to advise the member of the Bar concerned about his or her work, and how to improve for the future. It is hoped that the Panel will help to raise standards at the Bar. The BSB has expressed its support of the BQAP and will observe with interest how effective it is and whether it could be adapted or adopted by the BSB.

To complement its work on quality assuring individual barristers, the BSB is also turning its attention to Chambers. The BSB is currently developing a scheme which will, for the first time, enable it to identify systematically which Chambers are complying with the Code of Conduct and where necessary to take remedial or disciplinary action to address non-compliance. Whilst focussed on Chambers rather than individual members of the Bar it will play an important part in the future development of quality assurance at the Bar. It is intended that the scheme will be piloted in April 2008.

In addition to its own work on quality, the BSB is actively involved in the development of the quality assurance scheme proposed by the Ministry of Justice (MoJ) and the Legal Services Commission (LSC) for publicly funded criminal defence work. The scheme arises from the recommendation made by Lord Carter of Coles in his Review of Legal Aid Procurement that a proportionate system of quality monitoring should be developed for all advocates working in the criminal, family and civil courts. It was agreed that the new scheme should be developed in the first instance for publicly funded criminal advocates.

The MoJ/LSC has recently consulted on its proposals for the scheme with a view to running a pilot in 2008. They propose to introduce a grading process for criminal advocates with assessment based on their skills and feedback from solicitors, members of the judiciary and others. Each grade will have a defined competency framework. Types of criminal case will be allocated into each of the grades and barristers will only be able to undertake work within their own grade. Barristers will have to apply for appointment under a particular grade and can seek to be moved up to a higher grade as their skills develop. The consultation paper proposes that the BSB should have a monitoring role in the scheme to ensure that barristers are being graded in a manner that is consistent and evidence based.

In its response to the consultation paper, the BSB expressed reservations over its role in the scheme and raised concerns generally about how the scheme will operate. These centre on whether the proposed scheme will be transferable across the whole profession and whether it will fit with the BSB’s wider approach to quality. The BSB hopes to continue to engage with the MoJ and the LSC in the development of the scheme to ensure that the two are consistent and do not duplicate.

It is clear therefore that quality is a hot topic. Initiatives are being developed by a number of bodies and there is a real risk of over-regulation and duplication of quality assurance assessment. The BSB is keen to guard against this. It will develop initiatives on quality that are proportionate and light touch but which have enough robustness to be effective and to carry consumer confidence. In addition, it must not place a heavy burden on the Bar as a whole or prove too costly.

We hope that we have given some insight into the direction that the BSB intends to follow on quality assuring the Bar. It is crucial that the BSB engages with the profession during this process and that barristers are afforded the opportunity to be involved in establishing the standards and values against which they and their fellow members will be measured. The BSB must work in partnership and not against the profession, for without the approval of the regulated, the BSB will not be able to deliver an effective and defensible system. At the same time, the system must carry the confidence of the wider public who must be satisfied that the profession is serious about continuous improvement, quality and accountability.

We are at the start of a long but exciting road. We look forward to working with you on the journey.

Mark Stobbs
Director of the Bar Standards Board

Oliver Hanmer
Head of Standards & Quality