Bar Council and BSB agree protocol to strengthen regulatory independence

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20 December 2013

Davies: protocol strengthens independence

The Bar Council and Bar Standards Board (BSB) have published a protocol for ensuring the latter’s regulatory independence, fulfilling undertakings the pair gave to the Legal Services Board (LSB).

It follows the LSB investigation which last month found that the Bar Council interfered with the BSB’s independence during the development of the new contractual terms for barristers.

The Bar Council and BSB accepted the main findings of the investigation, and the protocol is the result of undertakings given to the LSB as a result. It supplements the LSB’s internal governance rules, which are already designed to ensure that representative bodies do not exert undue influence or control over regulatory matters, so as to “give assurance that regulatory independence is being achieved”.

The protocol establishes that the Bar Council “should not ordinarily be involved in the discharge of regulatory actions or obligations”, but that the it is entitled to make representations to the regulator.

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In exceptional circumstances the BSB can seek “expert advice” from the Bar Council, but the protocol hedges this with a string of measures to ensure that any advice given does not overstep the line.

This includes curbing actions which the investigation found were common during the development of the contractual terms, such as Bar Council staff drafting papers for and speaking at BSB meetings. Under the protocol, where Bar Council advice has been sought, a representative could only speak at a BSB meeting if they have a specific invitation from the director of the BSB and the agreement of the Bar Council’s chief executive.

The protocol also prohibits Bar Council representatives from attending private sessions of the BSB board other than in exceptional circumstances. Any such attendance should be by specific invitation relating to a relevant piece of business, it said, and should be documented and made public.

BSB director Dr Vanessa Davies said: “This protocol codifies arrangements that we have had in place for some time and senior staff are already well used to working in accordance with it.

“The BSB is confident that the protocol strengthens the independence of the BSB from the Bar Council, whilst nonetheless recognising the Bar Council’s role as laid down in the Legal Services Act 2007.”

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