Speech
9 Nov 2023

Introduction

  • I'm delighted to be back at the LPMA conference.  It's beeen roughly 18 months since I last addressed you. Back in May 2022, the BSB had just published our Strategy for the next three years and set out five priorities: efficiency, standards, equality, access, independence.  I said I wanted to enlist Chambers as allies in delivering these priorities, particularly in overseeing standards, equality and access.
  • So now we are over half-way through strategy – and, indeed, beginning to think about the next multi-year strategy.  We have also just published an important consultation document on the role of chambers.  So it’s a great moment to take stock.
  • It also follows a tumultuous 18 months in which the BSB has suffered a major cyber attack, committed to ambitious reforms and suffered a fair share of criticism.  Depending on who you listen to we either do too much or we do too little!
  • So I want today to do two things.
  1. First, to make some important points about the role and capability of the BSB itself – the subject of much of the criticism;
  2. And second to underline the important role which chambers – and the members of the LMPA – have in promoting a vibrant, inclusive and independent profession, with high standards of ethical and professional conduct, which serves the public interest.

Role and capability of the Bar Standards Board

  • Let me start then with the Bar Standards Board and make three points.
    • Operational effectiveness matters – and is improving.
    • But the public interest goes wider than being an efficient gatekeeper and disciplinarian for the profession: the BSB must also ensure that the Bar works well for consumers.
    • Risks to the public interest at the Bar are not necessarily the same as those in other legal professions.

Operational effectiveness

  • This is an important priority for us, but operational effectiveness must be understood as going wider than speed, important though that is.
  • In fact, we look at operational effectiveness in four dimensions: the quality of our decisions; the productivity of our Teams; the speed of decision-making; and our responsiveness and customer service.
  • Of these, we shall never compromise on the quality of our decision-making which remains very high: no adverse independent reviews in first half of year.
  • In the face of growing volumes and complexity – and the small matter of a cyber attack – we have done less well in recent past on other dimensions. 
  • But we are making distinct progress. 100 investigations were concluded in the second half of 2022/23. We have made steady progress in assessing initial reports on barristers and reducing caseload.  A major independent review of our enforcement process underway.
  • Our current challenge lies with authorisation applications.  It is a very mixed bag, but we have seen a big increase in applications from overseas transferring lawyers.  We are reinforcing the Team to cope.  Meanwhile, we are very conscious of the need also to complete the authorisation of pupillage providers.  Our commitment is to do that by the end of the year.  Thank you to chambers who have completed the process with us.

Public interest

  • Operational effectiveness, important though it is, is not the only reason the BSB exists.  In exercising our functions, we must look beyond individual barristers to the effectiveness of the wider Bar in serving the public interest.  Conveniently summarised in section 1 of the Legal Services Act 2007: supporting the rule of law; improving access to justice; promoting the interest of consumers; promoting competition.
  • This demands a different mindset and different capabilities of the BSB.
  • We must have a challenging and persistent approach.  We must ask hard questions about how well long-established practices are serving a 21st century profession and diverse and demanding consumers.  We cannot just resign issues to the Bar Council and profession, though we can, where we share an analysis, agree a shared response.  That response may consist of action by the profession rather than action by the regulator.
  • The proactive mindset and sphere of action I’ve described also demands different capabilities and qualities.  The BSB must, above all, be intelligence and analysis led.  We must analyse risks to the public interest – including the risk that opportunities for better service may be lost if technology is not sensibly and sensitively harnessed.  We must collect data from a range of sources and undertake research to shed light on those risks.  Where we identify risk, we must choose proportionate and effective ways to intervene.  Regulation will not always be the right response; sometimes it will.
  • That’s why the BSB is currently in the midst of reviewing our regulatory risk framework and overhauling our approach to data and intelligence.

Risk at the Bar

  • One final point before I turn to the role of chambers and of the LPMA members.  The BSB is concerned with risk to the public interest at the Bar.  Those risks do not necessarily mirror risks in other legal professions.
  • There are many examples I could give, but I shall home in on one unique to the Bar: the Cab Rank Rule.
  • The Rule has come in for criticism, including from some barristers, because it is seen as standing in the way of barristers taking an ethical stance about whom they should represent.  Lawyers, including barristers – so the argument goes – should give greater weight to the public interest in making these decisions.
  • I disagree.  The Cab Rank Rule underpins two important principles: the principle that barristers are not to be identified with their clients; and the principle that people or organisations with a properly arguable case should have access to justice.  These principles are at the heart of the Bar’s independence.
  • Scrap the Cab Rank Rule and barristers will, indeed, have greater choice about whom to represent.  But barristers will then face criticism if they exercise that choice in favour of unsavoury clients or unpopular causes.  Access to justice will be restricted as a result.  The independence of the profession will be attenuated.
  • So the Rule may be idiosyncratic to the Bar.  But we hold to the principles the rule seeks to realise.  It is a judgement the BSB has made in the light of the public interest and of the rule of law as it applies at the Bar.

The role of chambers

  • So the Bar Standards Board is reforming in order better to promote the public interest and in order to be more effective in carrying out our operational responsibilities as gatekeeper and disciplinarian.  But we certainly cannot be successful on our own.  We need the support of the Bar which shares our commitment to an independent, high performing and diverse profession.  We need the support of chambers, in particular.
  • Chambers are key because you are much closer to the action than the Bar Standards Board can ever hope to be.  You are receiving a steady flow of information from judges, solicitors and clients about the performance of your barristers. You are managing the process of recruiting pupils and tenants.  You have the information – and I hope are monitoring – the distribution of work among your tenants.  You are making decisions about the accessibility of your offices.  You are providing information to consumers about costs and levels of service.
  • And many of you are doing all these things and more – overseeing standards, equality, access, anti-money laundering – very well indeed.  But I hope it is not controversial if I say that there is inconsistency in the approaches of chambers.  That inconsistency reflects, at lest in part, a lack of clarity on our part, as regulator about what we expect of chambers in these respects.
  • That is why we launched our initiative on the role of chambers last year.  I foreshadowed the initiative when I last spoke to you.  Since then we have some great roundtables in each of the Circuits and in London.  I am very grateful to the LPMA for playing a full part in those; we have greatly valued the input of practice managers.  We published last month a further consultation document setting out what we had heard at those roundtables and making some proposals in response.  We are now beginning a new round of meetings across the country: the first is in London this evening.
  • I very much hope that you will continue to be full participants in this work.  We want your views.
  • We want your views on how the Bar Standards Board can best set out our expectations of chambers.  We favour expressing those expectations in terms of outcomes so that chambers can adopt approaches to meeting the outcomes which reflect their circumstances.  But we understand some smaller chambers in particular would like the certainty which comes with greater prescription.
  • We want your views on how the profession, including the LPMA, can support chambers in meeting our expectations with guidance and examples of good practice.
  • We want your views on how best to support the smaller chambers which lack a critical mass of administrative support.  Is it, for example, feasible for chambers to share some back office functions without detracting from competition?
  • And we want your views on how the Bar Standards Board itself should supervise and support chambers in complying with our expectations.  We have, however, decided on balance not to revive Barmark.
  • You can start by sharing thoughts with me over coffee this morning.  But I hope also to see many of you at our roundtables this evening and around the Circuits.

Conclusion

  • So there we are.  I hope you will invite me back in 2024 when we shall be in the thick of developing a new multi-year strategy for regulation.  By then, I hope – expect – that the Bar Standards Board itself will well on the way to operational excellence and proactive, but proportionate, regulation in the public interest.
  • By then I hope – expect – that we shall have clarity about the role of chambers, excellent guidance and good practice examples on how to meet those expectations, and effective support for smaller chambers.
  • Thank you for listening!

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