Blackstone: Urgent problem
“Radical thinking” is needed by the Bar Standards Board (BSB) to get a grip on the growing backlog of investigations and poor performance on timeliness, board members have said.
Kathryn Stone, who is also the Parliamentary Commissioner for Standards and former chief legal ombudsman, said the BSB should consider using a shared pool of investigators with other legal regulators.
“This is a real trust and confidence issue,” she told last week’s meeting. “It’s time for radical thinking.”
In a board paper on addressing performance in investigations and enforcement, the BSB said that performance in terms of time taken to accept a case referred for investigation and time taken to complete an investigation had fallen to an “all-time low” – 11% and 16% respectively, against a target of 80%.
The BSB said the pandemic and recent cyber-attack on the regulator had both reduced performance, but the “core reason” for the fall was “lack of resilience in the team to deal with staff turnover, the increase in complexity of the work and address fluctuations in the volume of cases.”
The number of investigations had also increased by 40%. “The main impact of the increase in referrals has been an ongoing backlog in investigation referrals awaiting acceptance. The team has not had sufficient capacity, until recently, to allocate cases to officers.
“We have prioritised cases according to risk, but this does mean that the lower-risk cases are subject to long delays before being accepted.”
Ms Stone said poor performance was “precisely the challenge” that had faced the Legal Ombudsman (LeO) when she headed the organisation.
Offering her services as adviser, she said: “We need to get this sorted and the Bar needs to see we are making progress.”
Lay board member Steve Haines agreed that there was “a lack of urgency” and “things were pushed back” quarter after quarter.
“I wonder if we need an independent view for the transformational and systemic changes needed.”
Alison Allden, another lay member, said it was time for the BSB to “do something radical to get us back on track” and that outsourcing should be considered.
Bar Council vice-chair Nick Vineall QC, attending the meeting as an observer, said “justice delayed is justice denied” and it was “crucial for the mental health of barristers that investigation and enforcement were done properly”.
He said the BSB had committed to producing a “recovery plan”, but the board paper was not one. “I’m sorry to be so blunt, but this is very disappointing.”
Mark Fenhalls QC, chair of the Bar Council, added: “I would urge the organisation not to be spending time on other things when it should be looking at this issue above all.”
He said a recovery plan should be drawn up before the next board meeting in September.
Baroness Tessa Blackstone, chair of the BSB, described the backlog of investigations and poor performance as an “urgent problem”, and said the organisation should explore outsourcing or bringing in staff on a part-time basis.
BSB director-general Mark Neale said he would consider all the suggestions made. “There is absolutely no lack of urgency or determination to tackle the issue.”
Sarah Jagger, director of professional conduct, added that while the key performance indicators were about timeliness, quality was also important. “On behalf of the staff, people are working hard. We haven’t had the staff we talked about last year.”
Barry Harwood 
This is genuinely and deeply shocking. I believe that, as a regulator, the BSB should be running projects on things like equality and diversity, access to justice and public legal education. Not everyone does.
Despite that belief, I accept that the bread and butter of regulators is upholding professional standards, primarily through effective enforcement. The “other stuff” can be important and impactful, but is secondary and if enforcement isn’t done properly, basic trust is eroded.
As Nick Vineall states, there is also a serious risk to the careers and wellbeing of barristers affected by a failure to enforce effectively. This is true whether they are guilty of an offence or not, although particularly unfair to those who aren’t. In turn, this creates a very embarrassing inconsistency between the BSB’s work on e.g. barrister wellbeing and diversity, and its approach to enforcement.
In my view, the “radical action” needed is to press pause on the secondary stuff and re-channel as much of the BSB’s resources (across the business in departments such as policy, not just in the enforcement teams) into fixing this mess and rebuilding trust/preventing further erosion of it.
Mark Fenhalls, Nick Vineall and Steve Haines are spot on. Enough focusing on how hard done by the BSB is because of staff turnover and the pandemic. Enforcement is your primary function: if you’re really in crisis mode as you say, focus on reprioritising and how you can fix it with staff and resources from across the business (and potentially through outsourcing as the article suggests)…