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Assessing the extent to which solicitors offer their clients a choice of barrister is on the bar watchdog’s agenda for next year as it seeks to raise its game following a damning appraisal by the Legal Services Board (LSB).
The initiative, flagged in the Bar Standards Board’s newly published business plan, is spurred in part by a 2019 case in which the first female practising Afghan barrister in England and Wales was told by an instructing solicitor that the client wanted a white, male barrister instead.
‘There are a number of regulatory angles for the bar in this issue, in particular relating to equality of opportunity and diversity,’ a BSB spokesman said. ‘The bar remains very largely a referral profession. Is it in the best interests of clients to be offered a choice of barrister? Sometimes yes and sometimes no. We will be looking at that [in 2024-25].’
In January, umbrella watchdog the LSB’s annual report card on the bar regulator came to a damning judgement of how complaints about barristers are handled. The BSB was rated ‘insufficient’ for leadership and enforcement qualities, amid lengthy delays in initiating and concluding investigations.
The BSB’s business plan for 2023-4 sets out policies which the board says will contribute to a ‘cultural transformation’. These include an independent review of enforcement processes, and overhauling the collection and analysis of intelligence it receives.
‘We want [the BSB to] look forward, not backwards, and to intervene, where necessary, proactively not reactively’, the plan says.
Chambers will be held more closely to account, with revised equality rules setting out minimum standards for oversight of diversity. Research will be undertaken with pupillage providers to investigate recruitment outcomes. Ongoing competence is also under review.
Reforms outlined in the plan will be reflected in changes to the bar’s Handbook and Code of Conduct.
The BSB’s budget is rising £1.1m year on year to £9.3m, after the regulator previously stated it needed more money. Most of the rise will be funded from practising fees, the spokesman said.
In its own performance review last December, the BSB reported that just 21% of cases were being referred for regulatory action within two weeks, against a target of 80%. The same target is in place for completing investigations within 25 weeks, but that has been met in just 38.7% of cases. The bar regulator agreed it needs to improve, but has since pointed out that in the last three months of 2022 it closed 61 investigations, compared with 31 in the previous quarter.
Representative body the Bar Council, meanwhile, has been highly critical of the umbrella regulator – its chairman urging the BSB last November to tell the Legal Services Board ‘to stop making overreaching demands and butt out’. In a letter to the LSB published alongside the business plan today, however, BSB chair Kathryn Stone assures the LSB of ’our ambition to see the Bar Standards Board increase its self-confidence and credibility as a respected independent regulator’.
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