Nichols: Some regulators more effective than others
The Bar Standards Board (BSB) lacks access to “sufficient capability, capacity and resources”, the Legal Services Board (LSB) said yesterday.
In its annual performance assessment of the eight legal regulators, the LSB said the Solicitors Regulation Authority (SRA), CILEx Regulation and the Costs Lawyer Standards Board (CLSB) met all their outcomes, while the BSB failed to meet six – up from two last year.
The oversight regulator’s performance framework measures each regulatory body against five standards – regulatory approach, authorisation, supervision, enforcement, and ‘well-led’ (governance) – and 27 underpinning outcomes.
The Bar’s regulator was sharply criticised by the LSB [1] this summer after a review of its approach to the ‘well-led’ standard, which found it paid too much attention to the interests of the profession at the expense of the public.
The LSB said BSB responded by agreeing an action plan to improve its performance.
“Overall, while the BSB has made progress against its action plan, many of the actions are still underway and require more time to embed and materialise given the significance of the reforms required and therefore these outcomes remain as not met – action being taken.”
In addition to the findings of its review, the LSB said the BSB had faced a “series of adverse events and challenges” in the past year.
“Taken together, it is hard to avoid the conclusion that lack of access to sufficient capability, capacity and resources has been a significant contributing factor.”
We reported last week that the Bar Council had criticised the BSB [2] for a proposed sharp increase in its budget.
The LSB found that, despite improvements in productivity, the BSB was not meeting its own targets for incoming reports, authorisations and disciplinary cases.
It referred to the “widely reported” problems with the August 2020 Bar exams, the causes of which were “helpfully clarified” by the BSB’s independent review [3], published earlier this year.
It also referenced the mishandling of a student’s application [4] for exemption from the vocational component of training to be a barrister, remitted to the BSB by the High Court for reconsideration in July.
LSB said resourcing, capacity and capability were a “central part” of its performance review.
The oversight regulator was most positive about the performance of the CLSB.
Chris Nichols, LSB director of policy and regulation, said the CLSB had “turned around its performance over the last two years, demonstrating that it is possible to perform well with limited resources, through innovative and collaborative approaches”.
The LSB singled out for praise the CLSB’s success in obtaining funding from the Regulators’ Pioneer Fund [5] to run a research project looking at whether costs lawyers “could bring about downward pressure on the cost of legal services”.
The SRA, which also received a grant from the fund, achieved a clean bill of health for the second year in a row.
The report said: “In 2022, we will be increasing our focus on regulatory bodies’ enforcement practices and will expect the SRA to engage proactively with this work and consider how it applies to its enforcement work…
“We consider that the SRA provides a high degree of transparency in respect of its work, decision-making and accountability, but we encourage it to think how it might provide more.”
The LSB has previously contacted Legal Futures directly on the issue of the SRA deciding to close its board meetings to the media and public; after it did this, the SRA promised journalists would still have regular access and engagement with its senior managers, but has not delivered on this.
Nonetheless, the LSB report did not mention this issue in relation to the SRA’s transparency.
The Council for Licensed Conveyancers, which had also achieved a clean sweep, missed two outcomes this year on transparency of decision making and engagement with stakeholders.
CILEx Regulation, which met all its outcomes this year, improved its performance in respect of the quality of its applications for rule changes and by amending its supervision rules.
The Faculty Office, which regulates notaries, shared the BSB’s fate in being the subject of a very critical individual review [6] and failing to meet six outcomes in this year’s performance assessment.
The Intellectual Property Regulation Board failed to meet four standards, up from two last year. The LSB said it remained concerned about the “limited access IPReg has to an adequate evidence base to inform its decision-making”.
The Institute of Chartered Accountants in England and Wales failed to achieve only one outcome, by not providing a register of its probate firms “which is accessible, accurate and provides information on the disciplinary records of those regulated”.
Mr Nicholls added: “Through our regulatory performance framework we seek to ensure that regulatory bodies are well-led and delivering good-quality regulation for the public.
“Our latest annual assessment shows that some regulators are doing this more effectively than others.”