The Bar Standards Board (BSB) has fired a warning shot across the bows of its solicitor counterpart, warning that “there will be instances where outcomes-based regulation is likely to be inadequate on its own, even if supplemented by guidance”.
Responding to the Solicitors Regulation Authority’s (SRA) consultation Achieving the right outcomes, which set out the SRA’s strategy to introduce outcomes-focused regulation, the BSB said that “simplifying and clarifying existing regulation should not mean that it should be any less rigorous”.
It continued: “The BSB remains concerned that outcomes-based principles may be too vague to deal with certain scenarios unless supported by at least some binding rules. Without such rules there is a risk that ‘simplification’ is merely a watering down of differing levels of regulation found to be appropriate for different regulators.”
The SRA has indicated that despite intending to reduce the size of the Solicitors Code of Conduct as part of the move towards outcomes-focused regulation, it will retain detailed rules where necessary to protect consumers.
The BSB response said that while flexibility can be helpful, the importance attached to process should not be underestimated. “For example, requirements as to behaviour of lawyers and employees, and others are outcomes which can be achieved only over a longer period of experience in operating the new regime. This is important for consumer confidence.
“Whilst outcomes may be set at a high level, there is still the question of how they are actually achieved. A more prescriptive approach should be taken where there is good reason to do so. It is important to ensure that it can be demonstrated how the outcomes might be secured in practice.”