Barristers’ regulator under fire

New chair of the bar tells me that improvements are needed

The Bar Standards Board, which regulates barristers and some other lawyers, has been assessed as the worst-rated of eight bodies that regulate legal professionals in England and Wales.

The assessment for 2022 was made by the Legal Services Board, the independent statutory body that regulates the front-line regulators. A report to be published today shows that the Bar Standards Board was rated as insufficient in two categories. No other regulator received the lowest score.

By contrast, the Solicitors Regulation Authority was judged as providing sufficient assurance in four categories and partial assurance in just one.

The regulators are assessed against the same five standards, described as regulatory approach, authorisation, supervision, enforcement, and well-led. Regulators can be rated as providing:

• sufficient assurance (green)

• partial assurance (amber)

• insufficient assurance (red)

Insufficient assurance means that the regulator’s performance

raises serious concerns in at least one area or multiple concerns. The regulator would need to take immediate action to address these concerns, including developing its own action plan.

Here are the board’s full findings for each regulator:

Referring to the barristers’ regulator, the Legal Services Board report says:

In our performance assessment of the Bar Standards Board, we have identified a number of areas of concern about its performance across all of the standards. The Bar Standards Board has provided us with insufficient assurance against two of the current five standards: well-led and enforcement. It has provided us with partial assurance against the three remaining standards: regulatory approach, authorisation and supervision.

While the Bar Standards Board can point to some progress in delivering the actions within its well-led review action plan and the recent initiatives to enhance its oversight, governance and performance, we are concerned that the underlying performance issues are not improving and in some areas are further deteriorating…

The Bar Standards Board must now fully engage with and accept the reasons for its underperformance and seize the opportunity to take ownership of the scale of concerns and the scope of improvement needed. We are hoping to see evidence of a determination to drive the step-change in culture, capability and performance required for the Bar Standards Board to become an effective regulator.

Chris Nichols, director of policy and regulation at Legal Services Board, said:

We expect regulators to operate transparently and ensure they have a sufficiently robust evidence base for their work. This is central to being a well-led organisation and ensures others, including the public, can understand how decisions are made and hold the regulator to account. For a number of regulators there is more work to do in this regard.

The barristers’ response

Barristers’ leaders have expressed concern for some time about the performance of the Bar Standards Board, to which the Bar Council delegates its statutory responsibilities and which is funded from the fees that barristers must pay in order to practise.

Mark Fenhalls KC, who chaired the bar in 2022, said last November that the handling of a complaint against Dinah Rose KC by the Bar Standards Board was “unacceptable and inexcusable”. The Bar Standards Board issued a public apology to Rose in connection with an allegation that was published by The Times and subsequently removed.

Regulation of the profession is a key priority for this year’s chair, Nick Vineall KC. He’s concerned at the increase in cost — another £1m every year — and he told me that barristers were waiting much longer than they should be for complaints to be resolved. He also commented on the leadership of the Bar Standards Board.

Nick Vineall KC

I interviewed Vineall towards the end of last year and you can read my account of our conversation in the new edition of Counsel magazine, which has just been published. We recorded the interview on camera and you can watch the full interview online. It will also be available as a podcast.

Some of the points we discussed were raised by Vineall during his inaugural address to barristers on Tuesday. The new chair said he was “cautiously optimistic” that steps being taken by the Bar Standards Board would lead to an improvement in its performance.

Vineall added:

There is a complete coincidence between the public interest, the interests of our clients, and the interests of the profession that disciplinary matters are dealt with both fairly and promptly. But improving performance will require concerted and focussed effort by the Bar Standards Board in conjunction with looking at ways to streamline the system, in particular to see if unmeritorious complaints can be weeded out at an earlier stage. And I think there is a shared understanding between the Bar Standards Board and the Bar Council that present levels of performance are not acceptable.

The barristers’ leader also called on the government to carry out a review the Legal Services Board in the light of what he described as its “campaigning ambition to become the sector-wide regulator”.

After hearing Vineall’s speech, the Bar Standards Board said it welcomed his remarks:

We agree entirely that we must improve the timeliness of our regulatory decision making and welcome his support for the measures we are already taking.

We agree too that we should avoid overlapping with the bar in our work where we can agree shared objectives and we have already made clear our willingness to collaborate with the Bar Council in bringing together guidance for chambers on best practice.

The Bar Standards Board is expected to produce an action plan for the Legal Services Board by the end of this month.

What happens next?

If the Bar Standards Board fails to improve its performance, the oversight regulator can deploy a range of sanctions that increase in severity. However, officials at the Legal Services Board hope this will not be necessary. The body that regulates costs lawyers had managed to “turn things round”, one said; it had improved its performance as a result of the board’s oversight. Officials thought the concerns expressed about the Bar Standards Board “should not be insurmountable or intractable”.

Update 0925: The Bar Standards Board has now responded to today’s report:

We welcome the Legal Services Board’s support for our work in a number of areas including our work to clarify expectations of chambers, our new regulatory risk index, our work to supervise and monitor the performance of education providers, our assuring competence work and our improvements in data collection and intelligence gathering. We are already making progress on all these. 

We agree with the Legal Services Board that we need to do more to improve the timeliness of our decision making. The board has made clear that is our top priority now and we’re already making good progress — in the last three months of 2022 (Q3 2022-23) we closed almost double the number of investigations in each of the previous two quarters (61 in Q3. 31 in Q2 and 29 in Q1).    

We agree too that there are lessons to be learned when things do go wrong and we have already learned the lessons from the August 2020 exams and the Ryan Eve case, for example. We handle many hundreds of cases every year and our independent reviewer confirms that the standard of our decision making remains generally very high, but there will always be opportunities to learn when mistakes do occur.

But in some areas we simply reached a different view to the Legal Services Board.  For example, the decision in relation to the Post Office scandal was taken with the full knowledge of the director general and we continue to believe that we acted promptly and proportionately to ensure that barristers comply with the Russian sanctions regime. It is quite legitimate for different regulators sometimes to have a different view about levels of risk. However, we welcome input from stakeholders and keep these matters under regular review.

So we look forward to discussing the Legal Services Board’s assessment with them further.