The Bar: Standards Delivery
A new era dawned for the Bar Council with the recent launch of the Bar Standards Board. The Council's director, Mark Stobbs, looks at the challenges ahead
December 06, 2006 at 07:03 PM
7 minute read
The Bar Standards Board (BSB) was established in January this year to carry out the regulatory functions of the Bar Council. It is the council's response to the recommendation in the report by Sir David Clementi that the Bar Council should separate its regulatory functions from its representational ones.
The council has, therefore, delegated its regulatory functions to the BSB, which now has responsibility for the rules governing education and training for the profession, the Code of Conduct, the complaints and disciplinary system and for monitoring the profession.
The BSB was appointed on Nolan principles, through open competition. It comprises 15 members – eight barristers and seven lay persons, including chair Ruth Evans, who has a distinguished background in consumer affairs and professional regulation. None of its members are members of the Bar Council or of its representational committees.
The BSB has spent much time considering the challenges that face it and how to address them. The first step here was to prepare the board's strategy, was launched on 30 November.
The strategy was developed through discussions within the board and consultation with the main stakeholders. We have tried to take on board what are often contradictory views. A crucial stage was to identify our mission, values and strategy. Our mission is to promote and safeguard the highest standards of legal education and practice in the interests of clients, the public and the profession.
We also considered what our values should be. The crucial ones are that our decisions must be proportionate, evidence-based, risk-based, transparent and consultative. These are crucial to the way in which we will approach problems and crucial to achieving confidence in those decisions.
The values we wished to promote within the profession next came under the microscope. The main ones were independence and integrity, quality and value for money, access to justice, diversity and redress when things go wrong.
We then developed our five strategic objectives of protecting consumers, access to justice, independent regulations, excellence and quality and diversity. All our work will fit within these categories.
A strategy is, of course, a living document. We are unlikely ever to reach the stage where we can say that the work has been completed. New challenges and issues will arise. We will be developing a business plan to set out how we intend to address these objectives and the immediate challenges.
The Legal Services Bill presents a major challenge. This will influence all our work because it will require professional bodies to separate their regulatory and representational functions and because it sets up the environment in which we will work – the Legal Services Board, the Office for Legal Complaints (OLC) and the regulatory principles. The BSB is keen to ensure that there is proper flexibility in the handling of complaints and that the expertise that it holds should not be lost. There is considerable scope for delay and confusion if two bodies have responsibility for handling the same complaint. The BSB will be lobbying to ensure that consumers are not faced by a poorer service after the implementation of the OLC.
Then there is public perception. The Clementi recommendations and the Bill are based on the view that consumers and the public no longer have faith in regulation by bodies which have dual regulatory and representational functions. This presents the challenge for the BSB that, although constitutionally a part of the Bar Council, the board must show itself to be independent.
This is a crucial challenge. In the board's view, independent regulation does not just involve the decisionmaking process. It means that it must have the resources to reach those decisions itself, to develop its own policies and to disagree with the Council. It must also have its own identity and be able to show the world that it is providing independent, modern regulation.
When we consulted on the strategy, there was a real concern among barristers who responded that the BSB would be profligate, spending money on unnecessary research and on creating its own identity.
There are two points to make in response to those concerns. First, the BSB fully accepts that it must use the Bar's resources responsibly. Second, however, it is in the Bar's interest for its regulation to be seen to be separate, for its decisions to be transparent and evidence-based. This will involve research and consultation and will cost money. The BSB is determined, however, that money should not be spent unnecessarily. It will institute mechanisms to ensure that its expenditure is justified and controlled, as well as that there is no unnecessary duplication of work.
The BSB must also consider the long-term policy issues facing the Bar: the problems over entry to the profession and the extent to which the restrictions in the Code of Conduct governing part-nership and relations with other professionals remain appropriate in a world in which Alternative Business Structures (ASBs) will exist.
Whether or not the Bar succeeds in persuading Parliament that complaints should be delegated, the BSB will still be responsible for dealing with disciplinary complaints against barristers and it is crucial that this system should follow best practice. Then there is the issue of quality assurance that has come to the fore in the context of the Carter review.
These issues form the meat of the BSB's work. The major tasks are clear. On the question of entry, the first major issue is that of deferral of call, which we hope to reach a decision on in the summer of next year. At the same time, we need to review the Bar Vocational Course. Are its contents still appropriate for a world in which ASBs may play a part and where people qualifying as barristers may require different or additional skills? Is the course structured in a way that is going to enable the Bar to attract the most talented potential barristers of the future? These are crucial questions for the next three years.
Our Complaints Commissioner, Robert Behrens, is conducting a strategic review of our existing system. We believe that the system is good, but we are clear that there is scope for improvement. Implementing Behrens's recommendations will be an important challenge for 2007.
A particularly important issue is that of quality. This has arisen out of the Carter review and the need to provide mechanisms to assure the quality of advocacy. The BSB will watch the work of the Bar Council to implement proposals for the criminal Bar with interest. It will develop its own policies and mechanisms and will consult about them. It will do so in the context that such schemes must be risk-based and proportionate. It has an open mind on how that should be achieved.
With the strategy drafted, the work of implementing it begins and of taking decisions on these and all the other issues facing the BSB. Nobody pretends that this will be plain sailing. There are many controversial issues here.
The BSB may need to take decisions which are unpopular or controversial. The fact that it is willing to do so will be a major test of its independence. What is important is that, as a result of the values that we espouse and the procedures we adopt for taking such decisions, our process will be respected and have the confidence of the Bar and our other stakeholders.
Mark Stobbs is director of the Bar Standards Board.
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