Sam Stein and Oliver Hanmer of the Bar Standards Board outline the theory and practice behind the new system of chambers monitoring, and the tangible benefits barristers will see from it, including a reduced oversight burden from others
[1]Strong focus: disciplinary action for non-compliance will be a last resort
On 18 October 2010, the Bar Standards Board (BSB) launched its chambers monitoring programme.
The programme builds on the successful pilot scheme in 2008 and sees for the first time, all chambers and sole practitioners required to complete a questionnaire which seeks information on whether and how they comply with certain regulatory requirements.
The scheme will be a means of making sure that chambers and sole practitioners are aware of what is expected of them and will encourage them to meet these standards.
The pilot scheme road tested a risk-based approach to the systematic assessment of compliance by a representative sample of 35 sets of chambers. Feedback from the pilot was positive with the majority of participants welcoming the BSB’s presence in chambers and the support it provided to chambers to ensure compliance. Following the pilot, and in the light of the views of the participants, the BSB has refined and further developed the scheme.
Slow start
As this is the first year that all chambers have been monitored and the outcomes are therefore uncertain, it seems sensible for the BSB to start slowly. Accordingly this year the focus will be on just four areas; chambers complaints handling, pupillage, equality and diversity, and compliance with the Money Laundering Regulations 2007. These were chosen because either there is an external requirement to monitor compliance, as in the case of complaints and money laundering, or because they are areas where there is the greatest concern about the consistency and extent of compliance.
The principal aim of monitoring by the BSB is to help chambers ensure that they are compliant. So, where non-compliance is identified, the BSB will look to chambers for suggestions on how it can be addressed and work with them to help them meet the standards expected/required. As part of this process, the BSB may visit chambers or ask for chambers to meet with the BSB in order to understand the potential non-compliance and to get a stronger feel for how the administration and management of chambers functions. Disciplinary action is available/possible/could be enacted where non-compliance continues but will be a last resort and only after attempts to assist chambers have failed.
Proportionate and targeted
The information that is gathered through the questionnaire will be risk assessed so that the recommended regulatory action is proportionate and targeted to where the need is the greatest. Chambers and sole practitioners who are fully compliant will be informed of that and as the scheme develops may, in the future, be able to use that information in marketing and other publicity material.
The BSB is well aware that chambers are required to provide information to a wide range of organisations such as the Attorney General and Crown Prosecution Service, and plans in the future to work with these bodies in order to avoid duplication. The aim is to ensure that compliance with the BSB’s requirements will be sufficient to satisfy the expectations of the other external bodies. BSB compliance could also be used when applying for block contract work with local authorities as a means of demonstrating that chambers are meeting their regulatory obligations.
In addition, the monitoring scheme provides an opportunity for an independent ‘health check’ of chambers’ procedures and processes and, where necessary, expert advice to be given on how these can be improved. This should not be underestimated; the BSB has a wealth of experience in all aspects of chambers’ administration and management, and is happy to work with chambers to ensure that their arrangements are compliant. Efficient systems and processes in chambers will go a long way towards ensuring that the service provided by chambers is well received by professional and lay clients alike.
Therefore, as well as providing comprehensive compliance data so that the BSB can take targeted regulatory action, the benefits of the scheme and compliance are tangible for chambers. The data gathered can also be used to identify gaps in regulatory guidance or where professional rules are unclear or in need of expansion.
Practical assistance
The BSB has formed no firm view on the future development of chambers monitoring and will only make decisions after the conclusion of this year’s programme. Chambers are encouraged to provide feedback and the BSB will take this into account, as well as the lessons learned from the current monitoring programme, when deciding on how the scheme should operate in future years. The BSB also intends to develop enhanced IT facilities for monitoring to enable the scheme to be as efficient and straight forward as possible.
The scheme has, however, been developed with sufficient flexibility to be able to recognise the variety of ways that chambers operate. Chambers’ management varies significantly depending on size, location and areas of practice and the BSB has had this in mind when designing the monitoring system.
Similarly, the scheme can be easily modified to address the likely changes to the structure of chambers as the legal services market adapts to the new business arrangements permitted under the Legal Services Act 2007.
Whilst at first blush chambers monitoring may appear to be the BSB taking on the role of Big Brother, the reality is different. The intention is not to catch chambers out but to ensure that they are complying with certain regulatory requirements and to give practical assistance where necessary. Good practice will be identified and shared across chambers and non-compliant chambers will be given every opportunity and assistance to address this.
We are keen to get feedback on the process and chambers are encouraged to tell us what they think of our approach to monitoring and where improvements could be made. We will take this on board as we develop the scheme in the future.
We hope that chambers will see monitoring as a positive step towards efficient and compliant administration and management of their processes.
Sam Stein QC is chairman of the BSB’s quality assurance committee and a member of the board itself. Oliver Hanmer is the BSB’s head of quality and the staff lead on the chambers monitoring programme