New chair for LSB

And a vacancy at the KC selection panel?

Congratulations to Monisha Shah, the government’s preferred candidate for chair of the Legal Services Board. She’s described as “preferred” because her post is subject to a pre-appointment hearing before the Commons justice committee later this month.

Monisha Shah

Shah’s last full-time job, more than 15 years ago, was as a director of sales at BBC Worldwide (now BBC Studios), the corporation’s commercial arm. She has held a large number of non-executive posts since then. But she is best known within the legal world as chair of the panel that recommends lawyers for appointment as king’s counsel.

At present, she is also chair of Publishers’ Licensing Services and co-chair of the Copyright Licensing Agency. In addition, she is a council member of the Advertising Standards Authority, a trustee of the Royal Collection Trust, a trustee of the Art Fund and chair of trustees at Caterham School.

Fortunately, the Legal Services Board requires a commitment of only 70 days a year — six or seven days a month, allowing for holiday periods. So Shah should have no trouble slotting in her regular attendance at half-a-dozen other boards as well as her various responsibilities their chair or trustee.

However, I suspect that the justice committee will be particularly interested in asking Shah whether she intends to remain chair of the King’s Counsel Selection Panel.

MPs will recall that until the beginning of last year Helen Pitcher OBE chaired both the Judicial Appointments Commission and the Criminal Cases Review Commission. That was because the Ministry of Justice was not prepared to pay the chair for more than half a week’s work in either role.

The justice committee was not impressed. In a report on the Criminal Cases Review Commission last May, MPs concluded that

the former chair held multiple executive roles which gave the perception of a lack of focus and may have contributed to the CCRC’s failings.

There is an obvious practical problem if Shah keeps her job on the KC panel. King’s counsel are appointed once a year and shortlisted candidates are interviewed by the panel during an intensive three-week period in the autumn. It is hard to imagine that the chair could devote much time to the Legal Services Board during that period and the weeks around it.

More important still is the potential conflict of interest. Because the Legal Services Board is the profession’s oversight regulator, its chair must keep a close eye on how bodies including the Bar Standards Board and the Solicitors Regulation Authority handle high-profile complaints against individual lawyers. If allegations against those lawyers are dismissed and they then apply for silk, how can they be confident that the chair of the selection panel has not been influenced by gossip and worse she has picked up from their regulator?

I am not for a moment suggesting that Shah would behave improperly. But, as a non-lawyer, she may not be familiar with the concept of apparent bias. Would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that she was biased in rejecting individual applications for KC status because of her ultimate responsibility for regulating the entire legal profession?

Shah may already have decided to give up her KC appointments role once the justice committee has confirmed her appointment to the Legal Services Board. Or she may be able to satisfy the committee that there is no conflict between promoting individual lawyers and regulating their regulator.

But parliament had a reason for requiring the bodies that appoint judges and regulate lawyers to be chaired by outsiders. And that independence of mind is threatened if the incumbent is juggling two overlapping legal roles.

The justice minister Sarah Sackman recently told the committee that, during Shah’s interview for her new job, she had “delivered a strong and credible exposition of the issues facing the Legal Services Board, both in terms of current enforcement action and live cases but also the wider systemic issues facing the sector. These include access to justice, growth, inclusion and consumer confidence.”

I wish Shah well in tackling these problems as she decides how to allocate her priorities.

Update 15 March: a reader has alerted me to the most recent report of the King’s Counsel Complaints Committee, an independent body set up with the support of the Bar Council and the Law Society to consider complaints from candidates about how their applications for silk were handled. The committee was chaired last year by Dame Geraldine Andrews, a lady justice of appeal.

It received a complaint from a candidate, referred to as C, who had the protected characteristics of disability. C complained about how the issue of disability was addressed during the assessment process, in which C was not successful.

Applicants for KC status must satisfy five “competencies”. Competency D requires a candidate to demonstrate an understanding of diversity and cultural issues. The complainant, C, received a score of zero, indicating a lack of evidence.

In its report, the complaints committee said it could not understand how the selection panel “could rationally have found that there was no evidence of excellence on competency D which would justify a grading of anything less than a 4 or higher”. The grading outcome on competency D “simply makes no sense”, it added.

Andrews and her colleagues dismissed C’s complaint of discrimination but upheld other complaints about the way C had been treated and told the appointments panel to refund part of C’s application fee.

And then they said this:

The KCCC [complaints committee] noted that the KCA [King’s Counsel Appointments] had already said that the chair of the selection panel who considered C’s application would be recused from further considering any application from C, and KCCC commends this decision.

It’s not entirely clear whether this refers to Shah — who is chair of the King’s Counsel Selection Panel — or to another member who might have chaired some sort of subsidiary panel. But it should be easy enough for the justice committee to check.

And I’m certainly not arguing that any panel member who was found to have been responsible for an irrational decision and had consequently been recused from further considering a complainant’s applications for silk would not be a suitable oversight regulator for the legal profession.

But it would surely be worth the committee’s time to ask Shah how, why and by whom it was decided that the chair of the selection panel who considered C’s application would be recused from further considering any application from C. That’s because, as I explained, one reason for recusal may be a complaint of apparent bias.

And, now that this year’s competition is open for applications, perhaps MPs will ask Shah to confirm that the six reforms recommended last November by the complaints committee have been brought into effect.