BSB: 85 barrister disciplinary decisions at risk because of tribunal errors

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By Legal Futures

26 April 2012

Davies: revising the terms of reference of the tribunals appointment board

The Bar Standards Board (BSB) has identified around 85 disciplinary cases involving barristers that could be invalidated by the fact that tribunal members who sat in judgment over them were ineligible for the role.

Overall an estimated 600 cases have been marked out as likely to be affected by problems with the appointments or eligibility of some 80 current tribunal or other panel members by the Council of the Inns of Court (COIC) – which oversees the Bar’s disciplinary cases. Earlier this month the figure was thought to be 550 cases.

But while 515 of the 600 involved a failure by COIC formally to reappoint members for a second time – in which event the BSB believes there is a strong case to argue the decisions remain valid – the remainder involved members who may have been ineligible. Reasons for this include simultaneous membership of the COIC panel and of a Bar Council or BSB committee.

In a report to this month’s BSB board meeting, BSB director Vanessa Davies said: “In relation to ‘time-expired’ members, the view is that there is a good case in law that such decisions remain valid and the BSB will be addressing the relevant cases on this basis.

“However, the position is likely to be different in relation to panels that included members who were also [on] Bar Council or BSB committees and consideration is still being given to how to approach these cases.”

COIC’s shortcomings appear to have prompted the BSB to pre-empt the conclusions of a review of the council’s disciplinary and hearings responsibilities. The review group was due to report in July 2012 but this date has been pushed back after its resources were diverted into sorting out the pressing appointments debacle.

Ms Davies’ report revealed the BSB has made “interim proposals” to COIC “in relation to revising the terms of reference of the tribunals appointment board, recruiting new panel members and employing a full-time director/registrar.”

BSB chair Ruth Deech also told the BSB meeting she had met with COIC at the end of last month and conveyed the view that its structure “really is not robust enough to support the work that we rely on it to do”. She said she had raised “the constantly changing personnel, moving from Inn to Inn, and so on”. COIC were treating the matter “very seriously”, she reported, and had “set up their own working group to amend their structure”.

Also at the meeting, lay member Rob Behrens, a former BSB complaints commissioner, suggested the board should have an annual open meeting “to demonstrate to people that you are open and transparent”. Baroness Deech said open meetings had been considered in the past but had not been taken up for cost reasons. She wanted to revisit the idea and that “it may not be as resource intensive as we think”.

It was suggested by more than one member that an open forum would stimulate “vigorous debate” and that it was advantageous that this should happen. There was general agreement at the meeting that the proposal should be pursued, with nobody dissenting.

Finally at the meeting, Baroness Deech welcomed the news that the College of Law had been sold to the private equity firm Montagu and a reported £200m fund set up from the proceeds that would pay for bursaries and grants for law students. This could be “excellent news”, she said, if it improved social mobility.

Lay board member Professor Andrew Sanders, head of the school of law at Birmingham University, pointed out that once the college became for a for-profit organisation, there was the possibility that fees would rise.


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