BSB chief: Many practices at the Bar have “outlived their usefulness”

Neale: Some criticisms are justified

There are many working practices at the Bar “which may have outlived their usefulness and no longer work in the interests of consumers”, the director general of the Bar Standards Board (BSB) said yesterday.

In a rare speech, Mark Neale also pledged to speak up more for the regulator and warned the profession that it would have to fund the recruitment of the right people to ensure the quality of its work.

The speech – entitled ‘Independence and the public interest: the role of a legal services regulator’ – observed that the BSB was criticised as much for doing too much as too little.

But he rejected the idea that this meant the BSB was “getting things about right”.

“Some criticisms are justified,” he accepted. “We have always, rightly, attached paramount importance to the fairness and integrity of our decisions, but we have not always been as prompt or responsive as we should be in transacting business.

“We can also be smarter in using intelligence to inform regulatory action and more on the front foot in taking action.”

But he also listed its achievements, such as “the consistently high standards of our decisions, the ground-breaking research and analysis on equality at the Bar, the far-reaching reforms of Bar training which have increased choice and flexibility, while reducing costs at no detriment to high standards”.

The criticisms reflected differing views about the role of a legal services regulator, he explained.

Regulation in the public interest – as demanded by the Legal Services Act 2007 – was not about countering monopoly power between economic entities as in other sectors but “in negotiating the inevitable information asymmetries and complexity inherent in a specialist field which most of the public will encounter only intermittently”.

This meant the public and professional interest often overlapped and the professions and their regulatory bodies should work together to secure shared objectives.

“We are not adversaries,” Mr Neale said, before adding: “The public interest and the profession’s interest are, however, not identical.”

“We are not there simply to act as gatekeeper or disciplinarian in individual cases, but to ask searching questions about how the wide range of arrangements and rules we oversee support or inhibit the Bar in meeting the needs of the public.

“The Bar, as a profession, is certainly not opposed to these public interest objectives, but nor are they at the forefront of its mind.

“Self-employed barristers – around 80% of the total – have limited personal interest in how well the Bar as a profession is meeting the present and future consumer interest in competition, access and comparative information.

“On the contrary, the long traditions of the Bar – in many ways a strength and safeguard of independence – also underwrite many unexamined practices which may have out-lived their usefulness and no longer work in the interests of consumers or, indeed, of the diversity of the Bar itself.”

An example was whether it was in the client’s interest that solicitors referring clients to barristers were often given little or no choice “and whether this may entrench inequalities in the distribution of work among barristers themselves”.

Mr Neale said that “duplication of interest, analysis and reflection” by the BSB and the Bar Council was sometimes inevitable, although this would not necessarily mean duplication of activity.

“We cannot, for example, simply say that the diversity of the profession is a matter for the profession itself and we shall disinterest ourselves in whether the profession is a good reflection of the society we serve or serves all consumers equally.”

Mr Neale made a veiled reference to the BSB potentially increasing its demand for funding.

“We aim to be operationally excellent in delivering the gatekeeping and disciplinary functions which matter to the public and to the profession day-to-day…

“So we shall need people with experience of delivering and simplifying complex processes and of customer care. We shall need the kit to support them.

“We shall also need outstanding analysts and researchers who have cut their teeth in regulation and understand that regulation must be proportionate to risk and evidence-based.

“The Bar Standards Board must have the freedom to frame pay and other HR policies which will enable us to attract and retain such people. We do not need to pay top dollar, but we do need to be competitive.”

Mr Neale stressed the importance of the BSB having both the operational freedom and “psychological self-confidence” to separate it from the Bar Council.

He acknowledged that this may not always be apparent from a distance “when we continue to be an integral part of the General Council of the Bar – a single organisation with two faces – sharing services and occupying the same offices”.

But the BSB’s “very credibility” relied on it “being, and being seen as, robustly independent”.

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