Bar watchdog in the red

Barristers and solicitors get a bad rap from politicians and the media – they are either ‘lefty lawyers’ frustrating government policies or ‘fat cats’ profiting from misery. Or they hit the headlines when they have been caught out behaving inappropriately – sex scandals, hands in the till, foolish comments on social media. 

Professional regulation appears a dull subject by comparison, but it has never been more vital that there is an efficient, fair and proportionate method for dealing with complaints about conduct.

The regulation of barristers has come under the spotlight. Some 17,400 practising barristers in England and Wales pay nearly £13.6m a year for their regulator, the Bar Standards Board – a rise of almost 22% from last year. Each barrister coughed up £659 in 2023, almost twice as much as solicitors paid for their practising certificate.

Criticism has dogged the BSB for years, including concerns that sanctions for sexual misconduct are too lenient and that barristers are pursued over trivial matters. Such concerns were heightened after the burden of proof was reduced from the criminal (beyond reasonable doubt) to the civil (balance of probabilities) standard.

Last year the BSB was essentially ‘failed’ by the Legal Services Board – the profession’s overarching regulator – which gave it a red traffic light rating.

Its own performance review reported that just 21% of cases were referred for regulatory action within two weeks and 38.7% of investigations were completed within 25 weeks – against performance targets of 80%. Instead of trying to do better, the BSB lowered its performance targets.

The BSB’s response to the LSB’s findings was to fork out what is likely to have been a tidy sum to City law firm Fieldfisher to tell it what most barristers have been telling the board gratis for years. It is doing a pretty poor job. The board would not disclose the cost of the review, claiming that the information is ‘commercially sensitive’.

Most investigations into potential conduct breaches are triggered by reports from members of the public. Fieldfisher’s review, published this month, shows that nearly 90% of those surveyed were unhappy with the way the regulator handled the reports and with outcomes.

Most felt the BSB did not keep them informed of the progress of their reports and 80% of responses showed dissatisfaction with the time it took to deal with them.

The report accepted that disruption caused by the pandemic followed by a debilitating cyber-attack in April 2022 impaired the BSB’s performance. But it exposed an absence of management of complaints-handling, a lack of information for staff dealing with complaints, and poor technology systems. It also concluded that the public has little or no idea of what the BSB does.

The regulator receives some 1,500 to 1,700 reports each year – the great majority of which are dismissed, with fewer than 15% assessed as requiring substantive action.

The ‘very large number of reports dismissed’, says the report, ‘suggests that members of the public could be better advised over the role of the BSB and the limitations on how it can help and support individuals with matters of concern’.

The report found that the BSB’s enforcement procedure ‘is in line with similar models used in professional regulation elsewhere’ and that its approach is ‘appropriate’, but that came with a stern admonition that it ‘could do much better’.

Among the recommendations, which the regulator has accepted, are the creation of a senior executive role to oversee the enforcement process, a simpler case management system, improved communication and simplifying the profession’s code of conduct.

The report also calls on the BSB to make its core responsibilities clearer to the public, suggesting that a better understanding of the boundaries of its role could result in fewer complaints.

Essentially, it suggests the BSB needs better leadership and systems so that it can do its job more efficiently – a simple conclusion that the director, who earns £140,000, might have been able to work out for himself.

The row over the BSB’s ineptitude could boost the Bar Council’s attempt to pressure the regulator and the Inns of Court to act on the contentious issue of point of call. Bar leaders want to move away from the current, confusing position where students can call themselves barristers after completing vocational study, but are not allowed to practise until they have done pupillage.

That means that 17,400 are paying for the regulation of 70,000 people, with unregistered barristers who have never been entitled to practise accounting for over a quarter of cases that get to the bar tribunal.

Reforming the point of call may be unarguable if it would result in the regulator being able to focus its attention and resources on lawyers who are actually practising.

It is nearly 17 years since Sir David Clementi, a former deputy governor of the Bank of England who went on to chair the BBC, was commissioned by the government to recommend reforms to streamline regulation of the legal professions in England and Wales. Clementi bemoaned the ‘maze’ of regulation but ultimately his report resulted in legislation that only made matters worse.

The two big regulators, the BSB and the Solicitors Regulation Authority, are widely criticised; the LSB is often slated as a pointless quango. Many believe it is time for the government to look again at professional regulation – and this time to take streamlining seriously.

Catherine Baksi is a freelance journalist and qualified barrister