What risk-based supervision at the Bar means for you

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26 October 2015

Posted by Oliver Hanmer, director of supervision at the Bar Standards Board

Hanmer: extremely encouraged by the positive response to supervision

Hanmer: extremely encouraged by the positive response to supervision

The public and the Bar can rest assured in the knowledge that it has a regulator looking after the public’s best interests, going by the high impact supervision returns report the Bar Standards Board (BSB) published last week. We have been looking systematically, carefully, expertly, independently and fearlessly at what the Bar does. We are pleased to assure the public that the vast majority of barristers are doing a great job.

If there is room for improvement, our supervision team at the BSB is working with the profession to make things better.

Over the last year, the supervision team at the BSB has been surveying, visiting and calling chambers up and down the country assessing in the first instance, impact – that is, how serious the consequences would be if something were to go wrong within the chambers. One example of ‘high impact’ would be a set which dealt with significant numbers of vulnerable lay clients. We have prioritised these chambers, not because they are necessarily high risk, but because of the impact on the public interest if, for example, the administration of chambers is not as effective as it should be.

As someone who has been involved with the regulation of barristers for a number of years, I am extremely encouraged by the positive response that we have seen from the majority of barristers to the introduction of supervision. This reflects the constructive approach that we have tried to adopt, which is in the spirit of working with chambers and barristers to improve, where necessary, the way in which they manage their practices.

It also illustrates the open and engaged way that the profession has responded to requests for information. We rely on the quality and detail of the information provided to ensure we have a complete picture of the risk landscape. If sufficient information was provided and we were assured that the chambers was managed well (as we were in the majority of instances), then we are able to assess them as low risk.

The supervision process is all about facilitating a constructive relationship between chambers and the regulator. It is in everyone’s best interests that chambers are managed competently; barristers’ and chambers’ operations should run smoothly, meaning we will be able to protect and promote consumer interests, with less need to take enforcement action on chambers.

Whilst the emphasis of supervision is to work constructively with chambers and barristers and to encourage them to take responsibility for managing their practices, it remains open, where they do not respond to this approach, fail to complete agreed actions or where there is evidence of professional misconduct, for referral to our professional conduct department to consider enforcement action. To date, our experience is that this has rarely been necessary given the level of engagement from the profession.

Risk management is the type of term that can be viewed with scepticism as management or regulatory speak. But in truth, we take risk-based decisions all the time, be it in our professional or personal lives. We just don’t necessarily describe it as that.

This was clear from our discussions with chambers. We were sometimes told, “We don’t do risk management”. However, it quickly became apparent when building our understanding of how chambers operated, that most have considered risk already and are managing it proactively. Some of the external risks that chambers identified included downward pressure of fees and the need to cut costs. Internal risks included managing complaints-handling processes and ensuring fair allocation of work within the chambers.

Supervision is not a one-off exercise. We want to develop the constructive relationships with chambers and barristers that we have established. We encourage chambers to contact us in the event that their circumstances change significantly, for example due to major changes in the practice, financial difficulties, or if irregularity occurs such as fraud or a compliance failure.

A change in risk profile would not necessarily precipitate a visit – we want to know how chambers is managing the increased risk. Failure to keep us informed is more likely to precipitate a visit or other monitoring activity.

Overall, chambers felt that engaging in the supervision returns was a worthwhile process because it gave them the opportunity to review and improve their internal processes. Importantly, it provided an opportunity for them to get to know the BSB more and to understand better our approach to regulation.

Hopefully it will have become clear that the purpose of supervision is not to catch the profession out or as a precursor to enforcement action, but to provide an open and constructive means of engagement to ensure that, through effective management of risk, chambers and barristers are operating in the public interest.

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