The Legal Services Board (LSB) has begun talking about taking formal action against the Bar Standards Board (BSB) over shortcomings in its performance, which it has emerged include how it has dealt with the Post Office scandal.
LSB chair Dr Helen Phillips has warned the Bar’s regulator that it might have to use its enforcement powers if it does not commit to fundamental reform.
These range from censures and fines to removing a regulator’s powers altogether.
It appears the oversight regulator is losing patience with the BSB after three years of multiple problems and a lot of correspondence, as well as formal reviews.
A recent exchange of letters between Dr Phillips and BSB chair Kathryn Stone followed an extraordinary meeting of the LSB in September – the details of which were confidential – and then a board-to-board meeting last month.
At Ms Stone’s request, Dr Phillips detailed in the latest letter 13 issues the LSB has identified since 2019 (listed below), ranging from broad performance problems to specific issues.
Most are already in the public domain but she revealed that there has been ongoing discussions in relation to the Post Office miscarriages of justice.
These include “unilateral decisions taken by junior staff to pause complaint progression and an apparent failure by the board to engage effectively with the strategic implications for the regulation of barristers raised by the cases”.
The LSB also outlined multiple failings in the BSB’s response to Russia sanctions (see below).
Dr Phillips said: “We think it important to reflect on whether the concerns taken together indicate more systemic challenges that need to be addressed holistically if the public and the barristers’ profession are to have the demonstrably competent, effective and high-performing regulator that engenders their confidence.
“While we recognise that some action has been taken on some of the issues… it is suboptimal for all concerned to continue to deal with them individually and often after something has gone wrong, with detriment to the public, to barristers, or to both.”
Dr Phillips said the LSB was not convinced that the board of the BSB understood the scale of the challenge facing the regulator.
She added that it was “striking” how the BSB board appeared unanimous about “past shortcomings in leadership”.
“I would very much encourage the BSB board to reflect, however, as to why such concerns were not made available to the LSB during its 2020 ‘well-led’ review of the BSB, or otherwise acted upon, as it may have implications for governance and the ability for the board to surface issues of concern as a group.”
At that time, the BSB was chaired by Baroness Blackstone. Although Ms Stone only succeeded her in September, she has been a member of the board since 2018.
Dr Phillips gave the BSB “a further short window… to demonstrate that it has recognised the seriousness of the situation, that it is committed to fundamental reform and that it will move with appropriate pace and rigour to devise, plan and execute a credible programme of change that satisfies the expectations of the oversight regulator and begins to rebuild confidence with the public and stakeholders”.
The BSB was due to have done so by yesterday, which should be published in due course.
She also expressed hope that “the potential for the LSB’s formal powers to be engaged” would be mitigated by the reply.
The 13 areas of the LSB’s concerns:
- The unilateral decision in 2019 to withdraw from Legal Choices, which was taken “without proper information and analysis to support it”.
- The “serious mishandling” of the Bar exams in August 2020, and failing to alert the LSB or co-operate effectively with the LSB on it.
- Heavy criticism from the High Court in the Ryan Eve case.
- The practice of ‘replying by silence’ remains “largely unaddressed”.
- The leadership and governance failings identified in the ‘well-led’ review published in July 2021, and the BSB’s failure to co-operate effectively with the LSB in the run-up to it.
- The LSB’s conclusion, in its November 2021 assessment, that the BSB lacked access to sufficient capability, capacity and resources to carry out its regulatory functions.
- “Failures to recognise the implications for regulation of the development of intermediary platforms which source public access barristers, and appear to handle client money, as in the case of Absolute Barrister, which collapsed a year ago.
- “Longstanding and significant under-performance” against the BSB’s own performance targets.
- The Post Office issue referred to above.
- The BSB’s publication of “incorrect information” on the application of the Russia sanctions regime to legal services, its “unsupported assertion” that the Bar was low risk, an early risk assessment “based on a faulty understanding of the UK nexus of the regime”, insufficient assessment of the risk profile of the BSB’s regulated community, despite the BSB’s own expert expressing concern about this, and its “initial reluctance to pursue basic compliance assessment and provide assurance despite clear expectations set for all regulators by the LSB”.
- The BSB’s “general reluctance to co-operate with the LSB”.
- Shortcomings in policies and procedures which left the BSB “apparently unable to act in the Goldberg case” – this may be the BSB’s decision to take no action against a KC who repeated discredited police accusations about the behaviour of Liverpool fans at the Hillsborough disaster.
- The events leading to the BSB’s apology to Dinah Rose KC.