Inns of court: Reforms follow Fieldfisher review
Major changes to the way in which barristers are disciplined – enabling cases to move faster through the process – have been laid out by the Bar Standards Board (BSB).
The 34 proposed reforms to its enforcement processes also include resetting the current ‘fitness to practise’ regime to a ‘health’ regime that allows for “a more flexible and compassionate process to handle issues of physical or mental impairment”.
In 2023/2024, the BSB assessed 1,724 reports of potential breaches of its handbook and referred 108 cases for investigation, of which 81 were accepted for investigation. There were 39 cases determined by the Bar disciplinary tribunal in that time.
The consultation follows a review and redesign of its end-to-end enforcement process, which in turn came off the back of a report by City law firm Fieldfisher last year that found the BSB had the right approach to dealing with complaints about barristers’ conduct but that there were “a large number of areas” for improvement.
It focuses on ‘in principle’ proposals for change, with a second consultation on the detail of their implementation to follow next year.
Among the proposals are:
- A new overriding objective that the Bar Tribunal & Adjudication Service (BTAS) deal with cases “justly and proportionately”;
- Greater case management powers and responsibility that would allow BTAS to set directions more quickly and actively manage proceedings;
- Giving tribunals greater powers to impose an immediate interim suspension or conditions pending an appeal;
- Giving both parties the right to make representations to a tribunal on the question of sanction where charges against the barrister have been found proved (the Solicitors Disciplinary Tribunal does not allow the regulator to do this in general);
- Clarifying the BSB’s right to appeal to the High Court in cases where charges are partially dismissed;
- Introducing a presumption that, by default, any witness making an allegation of a sexual or violent nature, will be anonymised;
- Asking whether all tribunal panels should consist of three members with a legal majority or whether the option to refer more serious cases to a five-member panel with a barrister majority should be retained;
- Chairs of tribunal panels need no longer by a judge or KC but may be an experienced legal practitioner with at least 15 years’ practising experience;
- The panels which decide whether to refer cases to the tribunal should consist of three members with a lay majority; and
- Deferring service on a barrister of written allegations of potential breaches of the BSB Handbook to close to the conclusion, rather than at the commencement as now, of an investigation.
The new health regime would remove the current requirement for the barrister to be incapacitated before the BSB can refer them to a BTAS ‘fitness to practise’ panel to take action.
The rebrand “will reflect the non-disciplinary nature of the regime and will differentiate it, improving clarity of purpose for the profession and public, from the fitness to practise model that is common in healthcare regulation”.
Under it, a referral to a health panel would be possible where the BSB receives information suggesting that there is a health condition, the barrister’s ability to practise is impaired as a result, and the imposition of a restriction or conditions (or undertakings in lieu) is necessary for the protection of the public or is otherwise in the public interest.
The BSB also wants to remove the current six-month time limit on suspensions and disqualifications that can be imposed on a barrister who is unfit to practise and replace it either with no limit or a maximum of three years.
BSB director general Mark Neale said: “The Bar Standards Board is committed to modernising delivery through our reform programme. This consultation is a crucial step to make our enforcement process more efficient and effective, but without jeopardising the quality of decisions.
“The changes will, in particular, help us to expedite cases involving bullying and harassment and, crucially, provide assurance of anonymity and support to witnesses.”
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