2023-24 Independent Decision-Making Body Annual Report

1.1 This is the fifth Annual Report of the Independent Decision-Making Body (IDB). This year has marked my first full year in the role of Chair and has been a time of consolidation and embracing change.

1.2 This report spans a period during which the IDB has adapted to the “new normal” post Covid, with remote meetings now well established. The Fieldfisher report towards the end of the year was a time to understand and reflect on the changes we have made both pro-actively and by reason of prevailing circumstances, and has been a helpful litmus test of our relative success in embracing those changes.

1.3 The increase in reconvened meetings over the last year has been a source of resourcing challenge, but has happily been absorbed by the current member capacity. That is not to say we can be indifferent to the need for additional members of the IDB in the coming years in meeting what is likely to be an increased workload in light of significant ongoing matters currently in the full glare of public attention.

1.4 In November 2023 the first IDB recruitment process of my tenure began. That process was an opportunity to stress test how we recruit, who we recruit and how we induct new members to the IDB. The latter part of that process is a matter for next year’s report, however the formative elements of the process, whilst in framework we found to be fit for purpose, will need to be amended before we seek to recruit in the future. We have therefore set up an IDB led joint Executive/IDB working Group to look at the job description and role specifications against which we are recruiting to ensure as much confidence in the process as possible.

1.5 The overall number of meetings taking place was consistent with last year’s and demonstrates the embedding of the learning points that came from the accelerated meeting process. The consistency of case outcomes, with 52 cases being referred year on year may be a blunt figure but does suggest a consistency both of workload and approach, with the case outcomes being well within tolerable bounds at 88.6% of case being referred leading to at least one charge being found proved.

1.6 Those figures amongst others suggest that the IDB decision-making process is working to produce good quality outcomes and sound decision making.

1.7 In writing this report I have reviewed last year’s Annual Report in which the IDB was still grappling with the need to provide more detailed reasons in decisions following the case of Eve v BSB (handed down in July 2021). There is no doubt that issue has been tackled head-on in the years since Eve, but we do now need to ensure we do not go too far the other way. Sound decision-making should be supported by sound written reasoning. Decisions should not be over-engineered, over-elaborate and thereby risk being impenetrable to the parties and to the public at large.

1.8 There is a happy medium to be achieved and part of achieving that is to ensure a level of consistency in the IDB’s written decisions. It is clear that best practice requires a level of consistency in decision-making and reasoning that needs our attention moving forward.

Reconvened IDB panels

2.1 In this reporting year there has been a significant increase in the number of IDB cases returning to IDB panels as ‘reconvened cases.’ In the previous reporting year, three cases returned to an IDB panel as opposed to the nine reconvened cases that have been re-scheduled for IDB panels in this reporting year. There are various reasons behind the cases returning which have included a request for review by the BSB Independent Reviewer from either the Barrister subject of the IDB Panel, or the Information Provider (IP) who initially made a report about the barrister, to the BSB.

2.2 As a consequence of the increase in reconvened panels, it has been necessary to invest more time and resources in scheduling additional meetings and has also necessitated more commitment by the IDB members to make themselves available at short notice to sit on panels. Some of the reconvened panels require that the original panel combination re-consider the case which can again create further pressure and delay in trying to identify times and dates which are convenient to those specific IDB members.

2.3 Given the continued rise in the number of reconvened panels, next year’s report will provide a full analysis detailing the circumstances which give rise to reconvened panels being scheduled and any trends identified.

Increase in IDB training and panel fees

2.4 Following Board approval in July 2023, it was agreed that there would be an increase in IDB fees applicable to both IDB training and IDB panels with changes effective from 1 April 2024. The Board agreed that the usual day rate be increased from £308 to £330 per full day and £154 to £165 per half day representative of a 7% increase.

2.5 Cognisant of the fact that IDB fees had not been reviewed since 2015 the Board also noted benchmarking which showed that this increase would align our fees with the average and median across the legal regulatory and other regulatory sectors.

2.6 The Board also agreed that a higher rate should be paid for IDB panel meetings (but not for IDB training sessions), with a supplement of £100 per full day and £50 per half day to compensate for reading time. It was also agreed that a loading fee should be paid to those IDB members who act as Panel meeting Chair of £100 per full day and £50 per half day. As above, these changes to fee structure were to be effective from 1 April 2024.

2.7 Notification of the increase in fees was communicated to the IDB members in July 2023 and met with a very positive reaction.

Recruitment of new barrister and lay IDB members

2.8 A recruitment process was undertaken in late Autumn of 2023 by the BSB’s Governance Team with a view to recruiting 3 new Barrister and 6 new Lay members. This was to replace 6 members, 4 of whom had reached the maximum permitted term having been with the IDB since its inception in 2019. The response to the recruitment campaign was high with 99 (19 Barrister and 80 Lay) applications.

2.9 In an effort to increase diversity within Barrister applicants a number of communications were sent, prior to advert publication, by the IDB Chair to Specialist Bar Associations and Equality and Diversity Groups and Associations whose membership was identified as being under-represented on the IDB. We consider it important as a body to ensure that the Barrister members recruited represent the best possible cross-section of the profession, whether in terms of practice area, seniority or protected characteristics.

2.10 Following the closing date for applications in early December 2023, long and short listing took place with interviews conducted in mid-February 2024. 3 Barrister and 5 Lay members who were successful were offered the role and all accepted with an official appointment date set for 1 April 2024 and a 2-day induction scheduled in Mid-April 2024.

2.11 The successful in-person induction and progress of the 8 new IDB members will be addressed in more detail in the 2024/25 IDB Annual report.

Accelerated IDB panel meetings

2.12 The plan put in place by the Executive in 2022/23 to accelerate the pace of investigations and thus clear a backlog in cases that had arisen, continued throughout the first half of 2023/24 concluding in September 2023.  The IDB’s role in the plan was to provide increased capacity to consider cases by holding more and longer meetings, in order to meet the increased throughput of cases referred from the Executive.  The statistics in the table at 3.2 below show that the pace and throughput of cases remained high in 2023/24 with 88 cases being considered at 44 meetings. This is compared to 68 cases and 39 cases in the last full year prior to the introduction of the plan (2021/22). It is of note that even though the accelerated arrangements ended in September 2023, the throughput of cases during the year was evenly distributed with 45 cases being considered by IDB panels before October and 43 after.

2.13 Following the conclusion of the accelerated investigations plan, the IDB reviewed the temporary arrangements that had been put in place to support the accelerated throughput of cases with a view to deciding whether any should be adopted on a permanent basis. The membership were surveyed and there was strong support for continuing the practice of drafting and approving the written reasons for decisions outside meetings. Whilst the membership accepted that this required increased time commitment from them, the practice substantially increased efficiency at meetings allowing more cases to be considered in less time. 

2.14 The membership was also supportive of continuing to use document sharing software to allow for collaboration, and the involvement of all panel members, in refining the final contents of written reasons.  As a direct result of this more collaborative approach to drafting, a small working group of the IDB has been set up to review the format of written reasons with a view to creating greater consistency in content and length of the reasons. 

2.15 There were a number of other changes related to scheduling which the Executive took forward, including a limit on the number and size of cases per meeting, more accurate time estimates for cases and notification of dates for meetings provided with longer lead times. Where possible, earlier access to bundles is also provided, especially for the Chair, to allow for more effective preparation. The Executive has also incorporated feedback from the IDB on the drafting of summaries and allegations, and the organisation/structure of bundles. The reference resources available to the IDB in decision-making have also been restructured and updated to improve methods of navigation through those resources. These amendments to processes have contributed to the continued improvement and efficiency of IDB panels and will continue to embed and be added to in the coming year.

3.1 This section outlines the work carried out by the IDB covering the reporting period 1 April 2023 to 31 March 2024.

3.2 The number of panel meetings and cases considered:

*Determination by Consent

**Reconsidered cases with outcome confirming original decision

***Reconsidered cases with outcome changed from original decision

****Reconsidered cases with outcome to re-discuss

^†For Authorisations only

Number of panel meetings

3.3 The table shows the number of IDB meetings covering the period 1 April 2022 to 31 March 2023 compared to the reporting period 1 April 2023 to 31 March 2024.

Enforcement & Authorisations cases

3.4 The table shows the breakdown of cases/applications considered covering the period of 1 April 2022 to 31 March 2023 compared with the reporting period of 1 April 2023 to 31 March 2024.

* This includes reconsiderations for Enforcement - 3 in 2022/23, 9 in 2023/24

Decisions taken

3.5 The table shows the outcomes of enforcement meetings covering the period 1 April 2022 to 31 March 2023 compared with the reporting period 1 April 2023 to 31 March 2024.

*Reconsidered cases with outcome confirming original decision

**Reconsidered cases with outcome changed from original decision

***Reconsidered cases with outcome to re-discuss

3.6 Remaining on the topic of decisions taken, the table below shows the percentage of cases referred by the IDB to a Disciplinary Tribunal that resulted in at least one proved Charge. In 2023/24 35 cases that were originally referred to a Disciplinary Tribunal by the IDB were heard at tribunal, of these 88.6% were proved. The statistics shown in the table below give a clear indication of the continuing high quality and sound decision making of the IDB.

3.7 The table showing the outcomes of Authorisations meetings covering the period 1 April 2022 to 31 March 2023 compared with the reporting period 1 April 2023 to 31 March 2024.

4.1 There were 2 reviews of IDB decisions carried out by the Independent Reviewer (IR) in the reporting period. In both instances a barrister requested a review of the decision to refer the case to Disciplinary Action. In both instances the IR recommended that the original decision be upheld and the panel agreed with the recommendation.

4.2 In terms of appeals, there were 4 appeals in total. There was one appeal against an administrative sanction. This was successful with the Appeal panel disagreeing with the IDB panel’s assessment of evidence.

4.3 In relation to Authorisations cases, there were 3 statutory appeals filed in the High Court. Two of these appeals were concluded on agreed terms (one was allowed by the court and one was dismissed), and the other was struck out.

4.4 There was a single Judicial review arising from decisions of the IDB in the reporting period linked to one of the appeals referred to above. This is ongoing at the time of writing.

4.5 One IDB decision taken in the year 2023/24 is under ongoing review. This is a reporter who has requested that a panel review its decision to dismiss allegations against the barrister.

5.1 The IDB has continued to be provided with quarterly training sessions, participation in which remains high with a combination of online and in person attendance. IDB Quarterly training during this reporting period took place in June, September and December 2023 and March 2024. Additionally during this reporting period IDB members were provided with tailored Chairs training and specifically for the Lay IDB members a bespoke visit was arranged to a local Barristers Chambers, both of which are dealt with in more detail below.

5.2 The content of quarterly sessions remains based on feedback from IDB members, and any issues identified by the Executive which are then finalised in collaboration with the IDB Chair and Vice Chair.

5.3 In late April 2023, shortly before the quarter 1 training session a number of IDB members took part in focused Chairs training. This session was facilitated by external training consultants and focused on training IDB members on the role of the Chair to equip them with the skills and confidence to perform this function. To specifically tailor the training to IDB panels, existing IDB members with previous Chairing experience joined the session.

5.4 The quarter 1 session included IDB members being provided with refresher training on honesty and integrity and the application of these themes in a professional regulatory context. The IDB members were provided with refresher training on key areas of the Handbook and relevant case law. This was followed by an update on the accelerated investigations programme which commenced in November 2022. The session concluded with CaseLines training. This is considered essential to IDB members’ working knowledge of how to navigate and utilise this electronic platform to its full potential including how to locate resources, training materials, case law and policies.

5.5 The quarter 2 session was training delivered by external Counsel on the application of Article 8 of the ECHR in IDB decisions. The session then proceeded with an interactive refresher training on the Determination by Consent procedure and concluded with a further update on the accelerated investigations programme.

5.6 In quarter 3 the session began with input from the Authorisations Team who provided refresher training on the various types of review applications including Inns Conduct Committee (ICC) cases and introduced a newly devised Authorisations meeting focused flowchart which has been favourably received. This was followed by training delivered by members of the Legal Support Team on the topic of Conduct in Non-professional Life and Social media guidance which helpfully coincided with the finalisation and publication of the BSB’s policy on this topic.

5.7 In mid-January 2024 the Operational Support Team with the assistance of the IDB Vice Chair arranged for Lay IDB members to visit a local Barrister Chambers. This allows Lay members to gain a better understanding of a Chambers environment and barrister working practices.

5.8 The quarter 4 training session was delivered by the Legal Support Team on the topic of Reviews of regulatory decisions and the Role of the Independent Reviewer. This is something which given the increase in reconvened IDB panel meetings dealt with earlier in this report has been identified in IDB members feedback as something which would greatly assist them. This was followed by dedicated training on Transparency Rules from BSB Senior Regulatory Officers. This training topic again had been identified from IDB member feedback. The session concluded with further update on the Enforcement Review being undertaken by Fieldfisher LLP, changes in IDB fees and invoicing processes and an update on new IDB member recruitment with planned inductions in April 2024.

6.1 Over the period of this report, feedback received from IDB panel members which is used as part of the Quality Control (previously known as ‘appraisal’) process has continued to be monitored. Within 7 days of the meeting taking place, each member is sent a link to an online self-reflection and colleague appraisal form in which they are invited to reflect on their own performance and that of their fellow panel members. The feedback data collected continues to be disseminated to individual IDB panel members every 6 months as part of the ‘360 feedback’ rolling programme delivered by the Operational Support Team.

6.2 Panel members have continued to be diligent in the completion of the online feedback surveys and have offered constructive comments and suggestions which inform the topics that are selected for IDB training sessions.

6.3 Comments from feedback during this reporting period suggest that the quality of the Chairing in IDB panel meetings is organised and methodical allowing all to contribute their views during panel meetings. Positive comments regarding time management in meetings has also been a noticeable trend and reflects the care, preparation and diligence of those members who Chair meetings.

6.4 In mid-January 2024 the Operational Support Team with the assistance of the IDB Vice Chair arranged for Lay IDB members to visit a local Barrister Chambers as detailed in the section above. Those who attended commented on how they found the visit fascinating and invaluable to their role as an IDB panel member.

6.5 The IDB quarterly newsletter published in June 2024 featured positive feedback from the IDB Vice Chair who commented that; “In January I joined a small group of IDB members and BSB colleagues in a visit to Fountain Court Chambers. For those of us whose knowledge into the workings of the Bar derives from 1980’s TV dramas, it provided a real insight into how a modern set of chambers operates, from practicalities such as financial arrangements to the selection of pupils and efforts to widen participation. The practical benefit is having a greater appreciation of details of some of the cases we see in panels”.

7.1 In 2023, the BSB commissioned Fieldfisher LLP to carry out a review of the end-to-end enforcement process, which commenced in August 2023 and reported in early April 2024. The IDB welcomed the opportunity to provide views on the enforcement processes via a survey of the membership and individual interviews. We were pleased to note Fieldfisher’s assessment that the IDB is operating and functioning well and that the recommendations directed specifically at our work are intended to support us in continuing on our “trajectory of effective and efficient working”. Five recommendations were made mainly directed at the IDB having greater authority to shape its work including its procedures and the support provided by the executive. While outside the period of this report, the IDB accepted the recommendations at a meeting in July 2024 and looks forward to working with executive on the implementation of these specific recommendations as well as the wider recommendations in the report that touch on the IDB’s work.

8.1 The year 2023/24 has been a time of consolidation for the IDB. After a period of considerable change and upheaval, caused in large part by factors beyond the control of the IDB and the Executive, the past 12 months has provided an opportunity to adopt the best working practices identified in that period to enable ever more efficient, thorough and fair decision-making.

8.2 The feedback and engagement from the vast majority of IDB members has been extremely encouraging and demonstrates a committed and focused cohort of individuals, working well together towards the betterment of the process.

8.3 The Fieldfisher review has been a welcome endorsement of the work of the IDB, empowering it to take a pro-active role in managing and progressing its work into 2024/25 and beyond. Part of that empowerment will need to focus on greater transparency being afforded to the IDB over the Enforcement and Authorisations processes from cradle to grave, whilst always ensuring information barriers are respected and observed. That in turn will be a valuable tool in informing IDB evaluation and progress within the context of the Enforcement and Authorisations processes as a whole.

8.4 Whilst there has been much to celebrate, 2023/24 has provided an opportunity to plan the direction the IDB must take to continue to grow and improve. Equality and diversity of the membership, whether in the lay or barrister cohorts is a continued focus in the coming year, and we will continue to try and innovate and find new ways to reach out to those under-represented sections of the Bar and the wider lay community to ensure the IDB becomes reflective of the profession and of the public it seeks to serve.

8.5 In conclusion I would like to thank all those current and former members of the IDB who have worked tirelessly to make fair and just decisions over the course of the year. Broadly speaking the IDB gets things right, but we must not be afraid to acknowledge and learn when we do not. That attitude has been evident in the entire membership throughout this year. I would also like to thank the Executive for its collegiate attitude to working with us, in particular the OST, whose work in supporting the IDB has been crucial in charting a course to where we are today.

Tim Grey

Chair of the Independent Decision-Making Body

September 2024