Haines: Milestone in enforcement reform project
The Bar Standards Board (BSB) is to take a right of appeal against decisions of its health panels, which is currently restricted to the affected barrister.
Proposals published last week also confirmed the regulator’s intention to publish disciplinary charges against barristers earlier than now.
The consultation puts the flesh on changes to the BSB’s enforcement regulations that followed one last year on proposed ‘in principle’ reforms, the outcome of which was announced last month.
Under the current regulations, a barrister may appeal a decision of a health (formerly fitness to practise) panel to extend, vary or replace a period of restriction following an assessment of their fitness to practise. The procedure is non-disciplinary in nature.
“Although we have limited practical experience of health panel cases (given that none of the small number initiated have progressed to a final hearing), we consider that there is a clear operational need for the BSB to have the ability to appeal decisions in appropriate cases.
“By amending the regulations in this way, both parties will have an equal opportunity to address or challenge decisions of the panel where appropriate, which will improve the overall fairness and effectiveness of the system.
No further right of appeal will be possible, as is the current position.
On publication, disciplinary proceedings are usually put into the public domain when a date is formally set for the substantive hearing and a ‘convening order’ is signed, normally 14 days before the hearing.
This is usually limited to the name of the barrister and the provisions of the code of conduct they have allegedly breached. The particulars are only made public at the start of the hearing.
Further, the Bar Tribunal and Adjudication Service (BTAS) is only required to publish the tribunal’s finding where charges are proved.
This means that, although hearings are held in public, it must not publish the outcome where charges are dismissed, unless the barrister asks for it.
Under the proposals, publication of the charge sheet will usually occur following the setting of case management directions and not, as originally proposed, when the referral to BTAS is made.
The BSB said: “We consider that this approach strikes an appropriate balance between transparency and fairness. It promotes the principle of open justice in the disciplinary process, while allowing sufficient time for preliminary matters or applications (such as applications for anonymity) to be addressed before publication.
“It also ensures procedural fairness by providing both the barrister and the BSB with an opportunity to raise any objections in advance of publication, whilst reducing unnecessary delays or delaying tactics.”
Among the other proposals are that the new regulations will come into force on or shortly after 1 February 2027 and will apply to all cases from that date, including those already in train.
“We recognise that this approach will have implications for barristers who may already be engaged in the BSB’s enforcement process at the point in time when the new regulations are introduced.
“However, we consider it proportionate to proceed on this basis as the changes are fair and do not remove existing barrister rights, including the ability to challenge decisions.”
BSB interim director general Steve Haines said: “The purpose of this consultation is to streamline the regulations to ensure they are better organised, simplified, use plain English and reflect best regulatory practice. It is a milestone in our project to reform the handling of enforcement cases.
“We are seeking views on whether the revised regulations properly give effect to our previously agreed policy positions and whether they support our overall objectives of improving the fairness, transparency, efficiency and effectiveness of the end-to-end enforcement process.
“We hope to hear from the profession and the public during the consultation.”
Separately, the Council for Licensed Conveyancers has launched a consultation on a raft of largely technical changes to its rules on disciplinary proceedings handled by its Adjudication Panel.
Chief executive Sheila Kumar said: “The independent Adjudication Panel plays a central role in upholding standards across conveyancing and probate to protect the consumer and public interest.
“As part of our ongoing work to maintain a robust and effective framework to address any allegations of misconduct against licensed practitioners, we have identified opportunities to further enhance the clarity and scope of the current Adjudication Panel rules.”
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