Depending on who you listen to, the Bar Standards Board is doing far too much and, in the process, neglecting its core regulatory functions. You will also hear it said, on the other hand, that the Bar Standards Board is too passive. We react to events rather than intervene proactively to shape the Bar to meet the changing public interest and new opportunities.
A possible reaction to these criticisms would be to assume that, in fact, we must be steering a broadly correct course. After all, regulators are never popular. And if we’re criticised in equal measure for doing too much and doing too little, we must surely be getting things about right.
That’s not my view. Some criticisms are justified. 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. I’ll return to what we are doing to improve in both respects.
But I do think it is time the Bar Standards Board spoke up. That is partly because I am very conscious of the dedication and hard work of the people who work for the Bar Standards Board. Their efforts deserve a voice.
So too do their achievements: 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 improved transparency for consumers brought about by our transparency rules; our partnerships with third-sector organisations which have helped consumers in vulnerable circumstances to navigate legal services.
More fundamentally, though, the criticisms that come our way often reflect differing views about what the role of a legal services regulator should be. So I want to address that question, to explain how we, in the Bar Standards Board, see our role and how our view shapes the approach we take to regulating in the public interest.
I want to make five arguments. The first is that the regulation of professional services is not the same as the regulation of economic utilities: there is scope for collaboration between the regulator and the regulated. And, indeed, in the case of legal services, the professions have a long and honourable tradition of self-regulation which has been an important safeguard of independence.
The second, however, is that the public interest and the interests of the profession are not the same. The regulator is there to champion the public interest and the public interest is not simply confined to acting as gatekeeper and disciplinarian on behalf of the profession.
The third flows from the second. It is that the regulator must, accordingly, make independent judgments in delivering its functions about how effectively the profession is serving the public interest in terms of all the regulatory objectives established by the Legal Services Act 2007. This does mean the regulator and the profession will often take a duplicate interest in many issues, but need not mean they duplicate activity where they share a common analysis of risk or opportunity.
The fourth is that the Bar Standards Board must focus on how well the Bar in particular is serving the public interest. The risks and opportunities at the Bar will not necessarily match those of the other legal professions.
And fifth, and finally, independence is essential to the Bar Standards Board’s ability to do its job. Independence must be understood not just as independence of decision-making, but also as operational independence and psychological independence.
So why regulate a profession like the Bar? The then government, in proposing the legislation that was enacted in the Legal Services Act 2007, was very clear that the purpose of the changes is to put consumers first.
In this, the government was echoing the findings of Sir David Clementi’s earlier review which found the pre-existing selfregulatory arrangements had insufficient regard for the interests of consumers. Pause, though, on why the needs of consumers are in need of protection.
Not, I think, because the consumer is at risk of economic exploitation by powerful monopolies. On the contrary, legal services in general, and the Bar in particular, are marked by high levels of competition. In that respect, the regulation of the legal professions is different from the regulation of, say, economic utilities.
The producer interest in the provision of utilities is, as Adam Smith recognised, focused on exploiting monopoly to maximise profit and, accordingly, is opposed to the interest of the consumer in competition and good value. The economic regulator is there to redress the economic balance in favour of the consumer. Relations between the regulator and the regulated should be correct but never collaborative.
The regulation of professions is not like that. The public interest does not lie in countering monopoly power but in negotiating the inevitable information asymmetries and complexity inherent in a specialist field which most of the public will encounter only intermittently. So, the public and professional interest overlap. Barristers share the public interest in the strength, diversity and independence of their profession.
This commitment is manifest at the Bar in the time and energy many barristers give to the training and development of the next generation and to pro bono work. It is manifest in the excellent work the Bar Council, the Inns and the Circuits do to promote good practice at the Bar.
It also reflects, of course, the fact that for much of their long history the Bar and other legal professions have regulated themselves. That tradition of self-regulation has been an important safeguard of the independence of the professions from pressure to toe the line of governments or causes. The independence of the legal professions is more important now than ever.
The principle of self-regulation was carried forward in the Legal Services Act 2007 which required the representative bodies, designated by the Act as approved regulators, to establish their own independent regulatory arms and delegate to them their regulatory responsibilities. So regulation became independent, but also continued to be anchored in the profession itself, not a creature of government or of Parliament. It follows, therefore, that I agree with the Legal Services Board conclusion in its recent report on CILEx and CILEx Regulation that the professions and their regulatory bodies should work effectively together to secure shared objectives. We are not adversaries.
That is not, however, the same thing as saying there will always be an identity of interest between the profession and its representative body, the Bar Council, and the Bar Standards Board as regulator. Although we share objectives, we approach those objectives from different angles of vision.
As the regulator, we approach the delivery of our regulatory functions in the public interest; the Bar Council is there to represent the professional interest. Sometimes the two will coincide, but not always.
That is fairly obvious when we reflect on the nature of the public interest itself. It is helpfully defined in the first section of the 2007 Act. There you will find regulatory objectives the profession would certainly endorse to the full. Adherence to the rule of law; the profession’s own independence, diversity and effectiveness; the maintenance of professional principles: all fall into this category.
But alongside these objectives are others which go to the reason for reforming legal services regulation in the first place: to protect and promote the interests of consumers; to improve access to justice; to improve public understanding of the citizen’s legal rights and duties. All of these are designed, as David Clementi recommended, to put the consumer first and give the consumer a champion undaunted by the complexity and information asymmetry which give the profession the upper hand in its dealings with consumers.
This has a big consequence for us as regulator in exercising the arrangements delegated to us. 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 outlived their usefulness and no longer work in the interests of consumers or, indeed, of the diversity of the Bar itself.
For example, the future supply of barristers – and hence the public’s access to their services at competitive prices – will be determined in the long run by the cumulative decisions being taken now by chambers and employers about how many pupils to take on and, in the case of chambers, how many tenancies to award. Does that accumulation of individual decisions both globally and specialism by specialism result in an answer which will ensure adequate supply in all specialisms for the long-term? It may. But, then again, it may not. We can see in fact that the profession is steadily ageing. Or, to take another example, we need to consider whether, when solicitors refer clients to barristers, it is in the client’s interest that they often provide little or no choice and whether this may entrench inequalities in the distribution of work among barristers themselves. Or, again, many barristers’ chambers occupy premises little changed since the 18th century. What steps are being taken by the chambers and their landlords to ensure these premises are fully accessible to disabled barristers, pupils and clients? And if they really cannot be made accessible, are they really any longer fit for purpose as modern accommodation? These are proper questions for the regulator to ask in fulfilling its functions.
Independence and collaboration
A further consequence follows from our duty as the regulator to view our functions through the prism of the public interest. The Bar Standards Board cannot simply resign to the Bar Council an exclusive interest in the pursuit of some regulatory objectives. We must form our own judgment about the risks to all the regulatory objectives and, to the extent that those risks engage our functions, about the interventions needed to manage those risks in the public interest. Incidentally, when I talk about risks I include here the risk that new opportunities – the opportunities offered by new technologies, for example – will not be exploited in the public interest.
So there will, I am afraid, be duplication of interest, analysis and reflection between the Bar Standards Board and the Bar Council. We cannot, for example, simply say 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. Duplication of interest should not, however, result in duplication of activity. In some cases, we as the regulator shall be able – and indeed eager – to collaborate with the Bar Council in reducing risk or seizing opportunity.
A good example is the work we are doing to support chambers in their oversight of standards, equality and access. The Bar Standards Board spells out in it equality and other rules the minimum requirements of practice management for which all barristers belonging to a set of chambers share a responsibility. Increasingly, we shall express these requirements in terms of outcomes rather than in terms of processes or policies.
We are conscious, however, that the Bar Council, the circuits and specialist Bar associations have all published much useful guidance in meeting the outcomes we all want to see. Many chambers exemplify good practice. So let’s work together and make it easy for chambers – particularly smaller chambers – to find their way to the guidance and good practice which will help them meet our regulatory expectations.
This is a win/win. The more assurance the Bar Standards Board can take from the quality and robustness of chambers’ governance, the less need for regulatory intervention. The Bar Standards Board and the Bar Council should also be careful not to duplicate each other in requesting information from barristers and chambers. Indeed, I have come to the conclusion that the Bar Standards Board should in future make targeted information requests only where warranted by our analysis of risk and not repeat our five-yearly, omnium gatherum regulatory returns.
There will be other areas where we can agree a division of labour in pursuit of shared objectives – always recognising that, as the regulator, we reserve the right to act ourselves, through regulation or other means, where that is necessary for the protection of the public interest.
Risk and opportunities
You would be right to interpret what I have just said as an assertion of our determination to make judgments about the public interest independently of the profession, but not to rule out working with the profession. I am equally clear, however, that the Bar Standards Board must make independent judgments about the public interest as it applies to the Bar and in the light of the circumstances of the Bar. This will govern the extent to which we can adopt approaches in common with other legal services regulators.
Opportunities for common action certainly exist. Since arriving at the Bar Standards Board, I have, for example, consistently championed a cross-cutting strategy for public legal education. Consumers don’t care about professional boundaries. They care about gaining access to good value professional help to identify and fix pressing legal problems.
It makes good sense, therefore, for the legal services regulators to join forces to identify the most pressing legal needs, particularly for consumers in vulnerable circumstances; what information consumers need to help address those needs and to find the right professional help; and what the best channels for delivering that information might be. Those channels will be many and varied. They will include the websites run by the regulators themselves, but will also embrace third-sector organisations trusted by consumers and to which they turn for help.
The point is that no one regulator can cover all the bases. We need to work together on common principles and to a shared analysis of need. Not all regulatory challenges are, however, like public legal education.
The reality is that in many important respects the Bar is not the same as other legal professions. It is predominantly (though not exclusively) a referral profession. Its stock-in-trade is advocacy and advice: barristers do not handle client money and do not execute deals on behalf of their clients. Much of the Bar (though not all of it) is characterised by high levels of competition which gives good assurance of continuing high professional standards.
That in turn shapes the nature of the risks to the public interest we see at the Bar. As I have already indicated, we do worry about the risk that referral arrangements represent to choice for consumers and to the fair distribution of work for barristers.
We are concerned that many long-standing but unexamined practices in recruitment and in the distribution of work run counter to equality and inclusion. Many chambers are not accessible. We should like to see barristers receive more regular feedback on their performance from a range of sources, including the judiciary. We’d like to see chambers play a more prominent role in overseeing standards, equality and access. But we see little evidence of a generalised problem of professional standards. We judge that the risks to the implementation of sanctions and to anti-money laundering regulation are lower at the Bar than in some other legal professions.
Indeed, if you told me a sanctioned individual or organisation was seeking the advice of the commercial Bar about their obligations, I would probably regard that as lowering the risk of a breach rather than the reverse. So independence of judgment does not just mean independence of the profession. It also means independent judgments about risks to the public interest at the Bar.
That brings me to my fifth and final argument. I have placed much emphasis on the importance of independence, above all of independent judgments of the public interest and in the public interest. But that is all rhetoric. How is rhetoric turned into reality? In fact, independent decision-making is a necessary, but not sufficient, condition for success.
The Bar Standards Board must also have the operational freedom and capacity to support effective decision-making. We need both to deliver our regulatory functions efficiently and to be on the front foot in analysing risks to the regulatory objectives and in implementing appropriate responses to those risks. Our current program of reform will deliver in both these respects.
We aim to be operationally excellent in delivering the gatekeeping and disciplinary functions which matter to the public and the profession day-to-day. We have always, quite rightly, set a high store by the fairness and integrity of our decision-making. There can be no compromise on that. But quality must be matched by speed and responsiveness. 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 to enable us to attract and retain such people. We do not need to pay top dollar, but we do need to be competitive. And that is not all: we also need to have in place the values, policies and behaviours to support a strong, independent regulatory culture.
Alongside operational freedom goes psychological self confidence. The Bar Standards Board must see itself, and be seen by its stakeholders, as credible and independent. Our board models exactly that. The board has great diversity and depth of experience. Its members have always been very clear about the importance of independent judgment in the public interest.
Viewed, however, from a distance, you can see that may not always be apparent 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 offces. So, yes, the Bar Standards Board and the Bar Council must have a constructive relationship and work together effectively. We shall often be collaborators, not antagonists (though we may, occasionally, be the latter).
But the relationship, to work well, must be one of equals, not a dependant relationship. Indeed, the very credibility of the Bar Standards Board – and hence its ability to regulate in the light of the specific and distinctive characteristics of the Bar – rely on being, and being seen as, robustly independent. So there we are. That is the world according to the Bar Standards Board.
It is not a world in which we are, or should be, free of criticism. On the contrary, we value transparency and accountability. And it is not a world in which we are perpetually at loggerheads with those we regulate. There is much scope for cooperation and for the elimination of unnecessary duplication. But it is a world where the Bar Standards Board makes independent judgments about how to take forward our regulatory functions in the light of the public interest and itself decides where its aims can best be fulfilled in partnership with the profession or with other regulators.
It is a world in which we shall sometimes decide that we must act independently of both the profession and other regulators to address risks to the public interest at the Bar or to seize opportunities.
It is a world in which the Bar Standards Board must have operational and psychological independence, as well as independence of decision-making, because we cannot take strong independent decisions without the right people and without a culture built on confidence and credibility. ■