BSB joins SRA in bid for structural independence

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18 September 2013

Inns of court: Bar claims regulatory framework weakens London’s appeal

The Bar Standards Board (BSB) has made a bid for formal independence from the barristers it oversees – the second frontline regulator to use the Ministry of Justice’s review of legal services regulation to make the case.

Meanwhile, in its own submission, released simultaneously yesterday, the body whose clutches the BSB seeks to escape – the Bar Council – has echoed the Law Society in calling for a partial return to self-regulation.

This would see the professional bodies setting entry and professional standards, with the regulatory bodies concentrating on disciplinary and enforcement work.

Otherwise the BSB and Bar Council responses bore striking similarities to each other, with both proposing the creation of a non-statutory College or Council of Regulators to replace the Legal Service Board (LSB) and act as a forum for the frontline regulators to share information and coordinate activities.

In arguing for statutory independence, the BSB echoed the Solicitors Regulation Authority’s recent bid for operational freedom. The BSB said that while independence had been entrenched by LSB-approved governance arrangements, “independence could and should be further entrenched by requiring the regulators to be separate legal entities from the representative bodies”.

It said there should be “cost-sharing arrangements” with the relevant representative body “where these contribute to efficiency without compromising independence”, and also noted that “care needs to be taken not to create regulators that, as a result of separation from the profession, lack understanding of the market in which they operate”.

The BSB submission repeated its call to abolish the LSB that it made last year during the Ministry of Justice’s triennial review of the oversight regulator, with the Bar Council – which did not go quite so far in 2012 – this time joining in.

While noting the positive effects of the Legal Services Act, the BSB argued that the LSB’s work was done: “There is no need for the LSB to act on a continuing basis as a kind of ‘special police’ to ensure the frontline regulators discharge their duties,” it said.

The BSB referred to a common forum of regulators, a non-statutory Council of Regulators, as a “more cost effective and less intrusive” alternative to carry out some of the LSB’s functions.

The Bar Council highlighted what it said was the LSB’s attempt “to micro-manage in ways that are plainly inconsistent with oversight regulation”. Further, the council claimed that the LSB’s interpretation of its oversight role had raised concerns overseas about the independence of the profession from government, with potentially damaging consequences for attractiveness of the UK as a global dispute resolution centre.

The Bar Council said its proposed College of Regulators would have a “strong judicial presence”, lay members, representatives of each regulator and professional body, and be accountable to the Justice Secretary, who reports to Parliament.

The BSB said the Legal Services Consumer Panel, which the Law Society argued should be abolished, could be retained after the LSB was abolished as a resource representing consumers, for the benefit of the regulators.

The board estimated that the LSB added 20% to the time taken to make “necessary changes” and 20% to the cost. It said each barrister had paid £162 to fund the LSB and it blamed the rising costs of the BSB in part on “the requirements put in place by the LSB”.

The BSB suggested it would be possible to “strip out” the LSB from its Legal Services Act-designated role, “with no damage to the overall regulatory structure”.

But if anyone suggested the same could be said of abolishing the frontline regulators, while leaving the LSB as a “monolith legal services regulator”, that would result in losing the advantage of having “specialist regulation of specialisms within the field of legal services”, such as the regulation of advocates, the board argued.

In answer to the MoJ’s request for ideas for rapid reform in advance of primary legislation, the BSB called for the ministry to revise its framework agreement with the LSB to require that the board “stays focused on being an oversight regulator”; assisting the frontline regulators only on request, intervening only to correct “demonstrable” failures, and rubber stamping “reasonable” changes to regulatory arrangements.


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