20 May 2019

Our risk-based approach

Background

 

The administration of justice and the rule of law are vital to all of us in society.

The rule of law is what enables us to protect our rights as citizens and to hold one another to account. Barristers play a pivotal role in the justice system in England and Wales, so enabling people to seek access to justice and setting the standards of service provided by barristers is central to our purpose as a regulator. Risk-based regulation is our way of thinking about what can go wrong in the legal services market, assessing how likely this is, and prioritising what we do either to prevent it from happening in the first place or to reduce the impact if it does go wrong.     

 

Our role as a regulator

 

As the regulator of barristers and specialised legal services businesses, it is our responsibility to safeguard the public in line with the regulatory objectives set out in the Legal Services Act 2007. These are:

  • Protecting and promoting the public interest
  • Supporting the constitutional principle of the rule of law
  • Improving access to justice
  • Protecting and promoting the interests of consumers
  • Promoting competition in the provision of services
  • Encouraging an independent, strong, diverse and effective legal profession
  • Increasing public understanding of the citizen's legal rights and duties
  • Promoting and maintaining adherence to the professional principles:
  • Independence and integrity
  • Proper standards of work
  • Acting in a client's best interests
  • Duty to the court: acting independently in the interests of justice
  • Confidentiality of client affairs

 To achieve this, we need to have:

  • Insight - an in-depth understanding of how the legal services marketplace works and how effectively it delivers for those who rely upon it; and
  • Influence - an ability to influence the marketplace so that it operates in line with our regulatory objectives. 

 

Insight

 

We need a good understanding of the market for barristers' services so that we can make the right decisions. That means we need to build a picture of the various groups and individuals involved - looking at the way that barristers work, the role played by others involved in the sector and the experiences of the public themselves.

For example, we might look at business models used by the profession, or at how clients choose their barristers. When things go wrong, we look at the harm to clients and to the wider public. 

We build market insight through activities such as:

  • listening to our stakeholders;
  • gathering information from those we regulate and from training providers;
  • assessing and investigating reports of concerns about the conduct of barristers;
  • gathering supervision monitoring information from chambers and entities (businesses that provide legal services); and
  • research and analysis.

 

Influence

 

By "influence" we mean we aim to take regulatory actions that make a meaningful and positive impact within the legal services marketplace. We have a variety of different tools that we can use as a regulator and we want to make sure we are using methods that are effective and targeted. Our regulatory tools include:

  • setting education and training requirements for all barristers;
  • setting standards for barristers entering the profession and setting requirements around their ongoing practice;
  • authorising barristers and entities providing legal services;
  • supervising and monitoring barristers, their chambers and businesses we have authorised;
  • investigating breaches of our regulatory requirements;
  • taking formal enforcement action; and
  • providing information, advice and guidance.

Most of these activities relate to the barristers and legal services businesses that we regulate, but we also work with groups such as training providers, legal consumer organisations and others involved in the sector.

We need to be able to evaluate how well we are doing against the regulatory objectives so that the public can have confidence in barristers and legal services in general.

We do this through our corporate planning, performance reporting, governance and change management.

 

Our approach to regulation

 

We seek to deliver "risk-based regulation". This means that before we act:

  • we work to identify the things that could go wrong, or have gone wrong; and
  • we carefully consider the right regulatory tool or power to apply to each situation.

By working in this way, we can take more proactive steps - acting before things go wrong and learning about which actions work best in any given situation.

This risk-based approach to regulation allows us to work in a more flexible way when deciding the best action to take and helps us to regulate in line with the regulatory principles set out in the Legal Services Act 2007, s28.

 

Risk-based regulation

 

The Legal Services Act requires us to regulate in a way that is transparent, accountable, proportionate, consistent and targeted. We also have a statutory responsibility under the Regulators' Code to base our regulatory activities on risk, taking an evidence-based approach to determining the priority risks, and allocating our resources where we think they would be most effective in addressing those priority risks.

To achieve this, we are constantly monitoring the market for barristers' and advocacy services. We identify all the potential risks that could prevent the Regulatory Objectives from being met and focus our attention on those risks that we think pose the biggest threats to the public interest. We then act either to try and prevent the threat posed by those risks from occurring in the first place, or to reduce its impact, or to deal with any problems that have already occurred.

 

Our 2019 Risk Outlook

 

The 2019 Outlook identifies the following three priority risk themes:

  • working cultures & professional environment inhibit an independent, strong, diverse and effective profession;
  • affordability and lack of legal knowledge threaten access to justice; and
  • innovation and disruption in the legal services market offer threats and opportunities for the profession and for the public.

The Outlook explores key areas of risk to achieving the regulatory objectives, and for each one looks to set-out:

  • why we think it matters;
  • the evidence;
  • our role as the regulator;

It is not the role of the Outlook to set out in detail what regulatory action (if any) we will be taking to address the risks identified or to provide milestones for relevant initiatives. This is contained within our Strategic Plan for 2019-22 and our annual Business Plans. 

 

Further reading

 

To read more about our approach to risk-based regulation:

  • download our Risk Framework which describes the BSB's general approach to identifying and managing risks in the legal market in order to deliver our Regulatory Objectives; 
  • download our Risk Index which categorises those risks; and
  • read our 2019 Risk Outlook which prioritises three risk themes which we will be the focus of our regulatory attention.