Three-quarters of the recommendations made by the 2012 Browne report into the disciplinary regime for barristers – sparked by irregularities over appointments to the disciplinary panels – have so far been implemented, according to a Bar Standards Board (BSB) report.
Meanwhile, to avoid future irregularities, the body which has replaced the Council of the Inns of Court (COIC) disciplinary service, the Bar Tribunals and Adjudication Service (BTAS), has recruited an entirely new pool of tribunal panel members and clerks. But it has reported running into some problems with pool members’ availability to sit.
Doubts were cast over hundreds of disciplinary decisions after a series of revelations involving tribunals run at arm’s length from the BSB by COIC, focusing on irregularities over appointments to tribunal panels.
A report by Desmond Browne QC – commissioned by COIC – found there were “systemic failures” in the administration of the tribunals. He recommended the setting up of BTAS in order to professionalise the way the tribunals system operated, including proper systems and procedures, transparency and accountability. It would have its own dedicated and custom-designed premises.
In October the High Court refused judicial review of the tribunals after finding that anomalies in panel member appointments did not affect the validity of their decisions. The refusal is being appealed.
According to a paper recently presented to the BSB’s main board, so far 58 of the final tally of 77 Browne recommendations have been completed, which officials described as “significant progress”.
In its first annual report, BTAS explained the outstanding recommendations related “to the establishment of a new COIC legal entity and the necessary TUPE arrangements to formally move the employment of the BTAS administrative staff from the various Inns of Court to the COIC entity”.
The BSB’s board has yet to consider two recommendations: that the barrister members of the pool should be paid a sitting fee and that a smaller pool with a minimum sitting requirement should be introduced, once barrister members are paid a fee.
To ensure compliance with the Browne recommendations and avoid future appointments irregularities, BTAS has put various systems in place. These include a conflict check “to assure itself that no panel members or clerks have declared any connection with the BSB or Bar Council on and between the dates of receipt of the original complaint and its subsequent consideration [by the BSB’s professional conduct committee]”.
BTAS’s panellist recruitment drive has led to a pool of 30 barristers, 17 QCs, 33 lay members, and 18 clerks. The organisation said it was able to “convene diverse panels” because, for instance, about 20% of the pool is of black and minority ethnic origin, and the male/female split among the QC members is 70:30.
However, despite the size and mix of the pool, BTAS admitted to having “nevertheless experienced some difficulty due to poor availability of some [panellists]”. The same was true of the clerks. It reported it would raise the issue of poor availability at appraisals this year.
During 2013, in six disciplinary hearings the BSB offered no evidence on the day. Among 82 tribunal hearings convened in 2013, 37 were before a five-person panel, which has the power to disbar a barrister and no limit on the time it can impose a suspension. A total of 12 barristers were disbarred.
Introducing BTAS’s annual report, the president of COIC, Lord Justice Pitchford, said COIC was “rightly proud of the independent tribunal service now delivered by BTAS”, but added that it had been “a long journey” which was not yet over.
At the time the Browne report was published, BSB chair Ruth Deech said: “The improvements brought about by full implementation of the recommendations will cement the creation of an independent and modern hearings service, operating fairly, transparently and efficiently in the public interest.”
BTAS has moved into premises in Gray’s Inn, including two tribunal rooms with digital recording facilities. The cost has been shared equally between the four inns.