The Bar Standards Board: A risk-based regulator and the future of the Bar

 

In the coming years, the Bar of England and Wales will face major challenges. These will arise from changing consumer demands and expectations, technological advances and global competition. They will arise too from Statutory and other approaches to regulation that place both the public interest and the free market above preservation of traditional practices and what some see as “vested interests”.

We’re already seeing the effects of some of these pressures in the market for legal services today. To highlight just a few – increasing numbers of Litigants-in-Person, reductions in public funding, and reform of the Court system. The pace of change, I would judge, is set to continue.

It is in this environment that we – the BSB – are working on our next strategic plan to take us through the period 2016-19. How can we as the barristers’ regulator, operating in the public interest, make sure that our regulations and our regulatory activity remain fit for purpose during a period of such anticipated flux? When change is the only certainty, how can we make sure that we stay ahead of the curve? How can we maintain the trust and confidence both of the profession we regulate and of the public we serve?

I should like to share some of our thinking about these challenges and invite comments. I should like in particular to focus in more detail on risk-based regulation in order to demonstrate that such an approach is going to be key to our success.

Let me assure you that the approach we are taking is only part of our move to a different kind of regulation. The Board has been thinking hard about the way the BSB should do its work in future and our own role. My barrister and lay colleagues have shown admirable ambition and commitment and we shall be unveiling changes after consultation with our staff and the many experts and professionals who give so willingly of their time and experience.

Since its inception in 2006, our focus has always been to uphold the standards of the profession and to promote excellence wherever we can. We are striving to build a deeper and more collaborative relationship with barristers’ chambers up and down the country.  To make sure they have the systems in place to provide quality services to the public. I am very pleased to hear that the recent introduction of our Supervisory regime has met with a positive reaction from the profession.

It is the task of the Bar, and its representative body, the Bar Council, to celebrate and market its particular strengths, high standards and professional values. But we at the BSB have the duty and responsibility to give independent assurance to the public that those claims are entirely valid and true.

Last year, we became an authorised regulator of entities, a new form of barrister-led businesses. Although take-up has been a bit slow, we believe that these entities could help barristers to compete more effectively in the legal services marketplace, and that they should provide consumers with more choice. I am intrigued that our regulatory regime has been seen as so appealing that we even have a couple of solicitor-led practices switching to the BSB as their preferred regulator, due to the value for money we provide and reduced red tape.  Over the years, the BSB has authorised barristers who have applied, and been accredited, to take instructions directly from the public and we have opened up the rules which allow them to conduct litigation. This has improved flexibility for the profession and access to justice for the public.

Against the background of intense financial pressures, we remain committed to protecting the public and consumer interest and access to justice. We will do this while balancing those regulatory objectives against the sometimes competing objective of encouraging the independence, strength, diversity and effectiveness of the legal profession.  It is in the interest of the public, the rule of law and access to justice, that the specialist skills of independent advocates should be maintained under the legal system of England and Wales, regularly renewed and refreshed and made available to all who need them.

We shall integrate policies to increase diversity and access to the profession. We shall need to focus on career progression at the Bar, identifying key risks in this area which, for example, are preventing women from reaching the upper echelons of the profession in the same proportions as they now enter.

We intend to be a strong and sustainable regulator and we shall do this by fostering public and political confidence in the value of what we do.  We intend to show intellectual leadership through the wealth of knowledge we build about the profession and the consumers of its services through assurance, performance monitoring and reporting.

And of course, while we are busy striving to bring about our vision of the type of regulator we want and need to become, we mustn’t lose sight of our day job. Authorisation, supervision and where necessary, enforcement will remain key areas of our operation. We shall continue our drive to become less prescriptive and more outcomes-focused in the way in which we regulate.

These are fascinating, but difficult times to be involved in the legal sector; and the stakes are high. It is a complex field, with many players.  Working alone, no regulator can be truly effective in understanding the issues, let alone addressing them.  Dialogue is key.  Yes, we need to be transparent about our approach.  But just as much, and probably more so, we need to be listening, learning and adapting.

Yet as much as we wish to maintain a close dialogue with the Bar, and benefit enormously from the insights and commitment of our barrister members, we must also continue to strengthen our real and perceived independence from the profession. This I suggest is vital as it enables us to articulate and defend our judgements of where risks to the public exist on the basis of independent and unbiased assessments of the evidence.

One of the key elements in our strategic plan is the need for us to become a much more risk based regulator.

A strong risk culture is one where this isn’t just a theory, a set of unread reports for the sake of it but where an organisation has geared up its governance, decision making, working practices and behaviours and the competencies of its staff to support proper risk management.  The purpose is to help us choose a good path through uncertainty, maximising the good and minimising the bad.

The risk-based approach to regulation of the BSB is driven not by our own whim, but by legislative requirement. It should mean less red-tape and less micro-managing. We are already travelling in this direction, but I want to give our approach sharper focus.

We have a responsibility to deliver on the regulatory objectives. If the risk to successful delivery remains a set of unknown unknowns, well we have a problem.  We must question whether the right things are keeping us up at night. We are building a consistent language and understanding from the top to the bottom, across each department of the BSB and we want this conversation to go wider.  As a regulator, our starting point for understanding our role is to look beyond High Holborn to wider society and the legal services market as a whole. Our approach must be rooted in the evidence.

We have identified three broad themes relating to risk which we want the profession to help us address.

  1. There is the risk of our failing to meet changing consumer needs, driven by new avenues opened up by technology complicated by low levels of public understanding of what is already available from the legal profession.
  2. There is a risk that discrimination, lack of diversity and what I might call outmoded working practices limit the profession’s ability to meet effectively the needs of a culturally diverse range of consumers who need and rely upon legal services
  3. Economic pressures (market uncertainty & commercial strain) could affect the quality, independence, availability and supply of legal services.

No doubt, the third risk theme, the relentless pressure on costs, will continue.  Commercial and private law may to some extent be sheltered from the changes forced on the publicly-funded Bar.  But the present model for the administration of justice in criminal, family and immigration courts is becoming increasingly challenged.  I have been made keenly aware, by the lawyers to whom I have talked and by the lessons I have learnt from sitting beside judges in Court, that many parts of the Bar are in severe pain, with many unable to fulfil their true potential.

Government says it cannot afford the cost of legal aid and court administration, individuals clearly cannot afford the cost of litigation and representation. This gives rise to an increase in litigants-in-person, and barristers find themselves squeezed out of the market by a declining case load and growing competition both from other regulated legal professionals and from unregulated service providers. As financial pressures bite on government, the chances grow that new legislation may be introduced which could radically affect the existing regulatory arrangements.

How the Bar fares will frankly depend on the robustness and creativity of its response, the changes which government and the judiciary will bring into the administration of justice, the speed with which consumers seek out alternative models and the success of the regulator, I suggest, in holding the ring.

The outcome will turn on the ability of the BSB to regulate court advocacy to high professional and ethical standards in the public interest, as well as the ability of the Bar to promote the value of that.

This is why we are continuing to roll out our Quality Assurance Scheme for Advocates, QASA. The recent challenges ended in a ruling from the Supreme Court that QASA is both lawful and proportionate, ie proportionate both to the risks and to the evidence. We hope to get it off the ground in the coming months.

We wish to nurture a deep dialogue with the profession and consumers so that what we propose and what we do can be demonstrably and incontestably evidence-based and risk-focused.

We believe we have shared goals. We want to see a healthy legal sector meet the needs of a diverse range of consumers, delivering access to justice and supporting the rule of law. We each have a different part to play, different insights to bring and a different take on how best to do that. But we are more effective when we work together.

We want to take a 360 degree look at some of the key issues we have identified in the Bar to build stronger insights and target more effective interventions where they may be needed.  We are looking for new and creative ways to do this.

This is just the start: this sort of engagement with experts, innovators and key stakeholders is core to the new way of working at the Bar Standards Board.

About Sir Andrew Burns KCMG

Sir Andrew Burns joined the BSB as the Chair on 1 January 2015, following a long career in the Diplomatic Service. He was the UK Envoy for Post-Holocaust Issues from 2010 to 2015 and was Chair of the International Holocaust Remembrance Alliance in 2014/15. His past roles include British High Commissioner to Canada (2000-2003), British Consul-General in Hong Kong and Macau (1997-2000) and British Ambassador to Israel (1992-1995). He was the final International Governor of the BBC; Chairman of Royal Holloway, University of London (2004-2011); and Chair of the Committee of University Chairs (2008-2011). He chairs Hestercombe Gardens Trust and the International Polar Foundation-UK and is a Governor of the Guildhall School of Music and Drama.

About the Bar Standards Board

We regulate barristers called to the Bar in England and Wales in the public interest.

We are responsible for:

  • Setting the education and training requirements for becoming a barrister;
  • Setting continuing training requirements to ensure that barristers’ skills are maintained throughout their careers;
  • Setting standards of conduct for barristers;
  • Monitoring the service provided by barristers to assure quality;
  • Handling complaints against barristers and taking disciplinary or other action where appropriate.

Our mission is to regulate the Bar so as to promote high standards of practice and safeguard clients and the public interest.

Sir Andrew Burns KCMG, Chairman, Bar Standards Board                               

 

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