The Bar Council has called on the Bar Standards Board (BSB) not to move to an “entirely different system” which will see far smaller groups of people than now make decisions on what to do about barristers accused of misconduct.
It said the regulator’s professional conduct committee (PCC) was “working well” and should not be “disbanded” in favour of an independent decision-making body (IDB).
The PCC decides what action to take on the more serious or complex conduct issues involving barristers – around 30% of the total. The rest are handled by BSB staff.
The PCC either issues an administration sanction, enters in an agreed sanction through the ‘determination by consent’ procedure, or refers the case to a disciplinary tribunal.
The PCC currently has 32 members – 19 lay and 13 barristers, with more barristers being recruited – divided into two teams each having a lay majority.
The proposed IDB would have a pool of 30 members (20 lay and 10 barristers), and operate with panels of three, five or seven members, depending on the complexity of the case, always maintaining a lay majority.
The Bar Council said an independent review of BSB enforcement decision-making by the law firm Capsticks – which formed the evidence base for the BSB’s consultation on modernising regulatory decision-making – “cited the ‘excellent input’ of the PCC and the ‘quality results’ that it produces”.
Responding to the consultation, the Bar Council said: “The desire to keep up with regulatory best practice does not outweigh the risk of changing to an entirely different system nor does it justify changing a system that has been independently assessed to be working well.
“It also notes that the nature of barristers as a profession makes them particularly effective at enforcement decision-making, a factor which should be borne in mind when transposing regulatory practices from other sectors.”
The Bar Council said its primary concern was that the new structure “could lead to a loss of professional knowledge and practice area insight that comes from the wide-ranging backgrounds of those who sit on the PCC”.
It continued: “No concrete risk of any lack of independence on the part of the PCC has been pointed to in this consultation. There is reference to its size possibly creating a perception of lack of independence, but we find this speculative.
“Moreover, while the Legal Services Board is quoted as mooting separation of expert advice and decision-making, the BSB has not articulated what (if any) problems there are with the present PCC that have led it to adopt that view.”
The Bar Council said it was not convinced that three-member panels would allow for “sufficient dialogue and discussion to establish the right course of action”.
The response continued: “It is important for the panel to be able to have a meaningful discussion and benefit from a range of different views when coming to a final position.
“Similarly, overly small panels will lose the benefit of shared learning identified by the independent review.
“We consider that it may be more appropriate for there to be panels of five as a starting point, with panels of seven convened in cases of a serious or complex nature.”
The Bar Council said it was also concerned that the draft enforcement decision regulations allowed, in principle, all decisions to be made by staff rather than by the PCC, or its successor.
Under the existing regulations, the PCC was “entrenched as a multi-member lay/barrister body, independent of the BSB executive, with powers of investigation and enforcement”, which could delegate them to staff but retained ultimate responsibility.
The Bar Council said it recognised that staff currently made the majority of decisions, and it was not suggested that the balance of staff and independent decision-makers would change, but the plans went “too far in the opposite direction”.
There was no requirement in the draft regulations for staff to seek “independent input” on a disciplinary decision, or a decision under the ‘determination by consent’ procedure.
The Bar Council said the new rules should “mandate that serious or complex cases are to be decided by the IDB”.