Damned if you do – the Bar Standards Board's unwelcome place in the spotlight
Bar regulator gets full chattering class treatment on Today as criticism of BSB mounts. Suzanna Ring reports
August 02, 2012 at 07:03 PM
6 minute read
It's not every day that the Today programme – that bastion of the chattering classes – devotes time to the regulation of lawyers, a subject that struggles to interest the legal profession let alone a general audience.
That the celebrated BBC radio programme, on 17 July, turned its attention to criticism aimed at the Bar Standards Board (BSB) – a small organisation policing a small branch of the legal profession that rarely even directly advises the public – speaks to the simmering resentment felt by many barristers towards their regulator (and the enduring media clout of the Bar).
The programme focused on an inquiry by senior barristers into alleged administrative errors at the BSB. This resulted in a report by 5RB's Desmond Browne QC highlighting a number of issues in need of address at bar disciplinary tribunals and the possible review of around 600 cases.
Criticisms levelled at the BSB – which was launched in 2006 as an independent regulatory arm, taking on the watchdog function of the Bar Council – include allegations of conflicts of interest, lack of transparency and poor management.
At the heart of the controversy is the failure to reappoint tribunal members that have continued to sit after their terms have lapsed, and potential conflicts between those supervising, and in some instances judging, cases.
The BSB has also attracted intense resentment from many in the Bar for what critics argue is a policy of hauling barristers in front of a tribunal for minor misdemeanours, such as not having completed their continuing professional development (CPD) training.
Criticism has also been levelled at the Council of the Inns of Court (COIC), the independent tribunal that considers cases put to it by the BSB, for not properly reappointing members of hearing panels. In some cases COIC tribunal members were also sitting on committees of the Bar Council or BSB, potentially opening the individuals to claims of bias.
It should be noted that it has been decided the vast majority of the 600 cases presided over by members with lapsed terms will be upheld, after a High Court judge, sitting as Visitor of the Inns of Court – last month rejected the argument that there is a substantive procedural flaw.
The BSB's model of independently reviewing complaints against barristers has also drawn fire. This procedure involves the appointment of a 'sponsor' barrister to review a case, before the sponsor then presents their view of the recommended course of action to the professional conduct committee (PCC) of the BSB, who then decide whether to dismiss or proceed with the complaint.
The barrister in question is not made aware of the identity of their sponsor and no minutes of the meeting with the PCC are kept, a regime that many feel lacks transparency.
Discussed by the Today programme last month, Five Paper Buildings' barrister Jonathan Rich, who was brought up in front of the tribunal in light of criticisms from the RSPCA against which he frequently acted, discovered his sponsor barrister had acted for the RSPCA, creating a potential conflict of interest. This would have gone undetected had the sponsor's name not been accidentally redacted from the case notes.
One silk comments: "I can't begin to tell you the contempt I have for the BSB. To describe it as a kangaroo court is to be very charming about it. Their procedures are a shambles and the people sitting on their judging panels should not be."
The premise of Browne's review into the disciplinary tribunals was to investigate the independence between COIC in its administrative duties and the BSB as prosecutor. Within the first page of the report Browne states: "Little did I expect that within a few days of starting work we would uncover what can only be described as systemic failures in the administration of the tribunals service."
The report includes 82 recommendations to establish a new COIC tribunals service that accords with modern professional regulation and with what "the public interest demands" and states that the BSB is currently exercising functions beyond those it should properly hold as the prosecutor.
BSB chair Ruth Deech has welcomed the report, saying: "The publication of the COIC tribunal review report is a vital step in assuring the public and the profession that the disciplinary arrangements for the Bar of England and Wales are open and transparent.
"The BSB will continue to work with COIC as it implements the recommendations contained in the report. The improvements brought about by full implementation of the recommendations will cement the creation of an independent and modern hearings service, operating fairly, transparently and efficiently in the public interest."
Such comments reflect a position adopted by the regulator's supporters: that the BSB is largely taking flak that should be aimed at COIC, which has now come under huge pressure to reform and modernise its procedures or see the Inns give up their disciplinary brief.
But despite attempts by the BSB to diffuse the matter, the attention on its record comes at a sensitive moment. For one, the Legal Services Board, which has frequently locked horns with the Bar watchdog, is currently reviewing the disciplinary regime across the legal profession. The process seems likely to create recommendations to unify the procedures and standards used across different branches of the legal industry.
In addition, the BSB has also become exposed to more scrutiny for its expanding role in legal education, both in imposing centrally-set examinations for Bar Professional Training Course (BPTC) students and with its current plan to introduce an aptitude test to weed out aspiring barristers with little chance of success.
Both initiatives have been controversial, with the BSB being criticised by students for teething problems with the BPTC exams. This reflects the irony that the BSB often comes under pressure to crack down on supposed profiteering by vocational law schools, while moves to reduce the flood of aspiring barristers are often received with howls of outrage.
The depressing reality for the BSB as it attempts to navigate the shifting environment of the Legal Services Act is that its successes will usually go unnoticed but perceived failures will be loudly – and in this case literally – broadcast to the world.
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