Chambers: Risk-based approach
The Bar Standards Board (BSB) has floated the idea of publishing assessments of individual chambers as part of a new “graduated supervision strategy”.
It might also seek to encourage smaller chambers to merge so they can boost the professional support available to them.
The regulator has held a series of roundtables with barristers since launching an initiative a year ago to create a “statement of consolidated good practice” for chambers, which would not only set out the minimum regulatory requirements but how to go above and beyond them.
Along with the statement, the BSB floated the idea of a quality mark or awards scheme to recognise good practice.
However, in a consultation it has just published, the BSB said it agreed with barristers at the roundtables that the revival of a scheme like Barmark was “not the answer”.
Instead, there would be a “more rounded approach”, combining outreach, surveys to gather evidence of risk and compliance, and where necessary “compliance action”.
Fundamental to this strategy would be an approach which was graduated in proportion to risk.
“We would want to work collaboratively with those chambers at the forefront of good practice and support them in sharing experience.
“We would aim to encourage chambers with some distance to travel to draw on the guidance and good practice available and to take advantage of informal support networks. We would take enforcement action only with those chambers which were persistently non-compliant.
“As part of a graduated approach, we may also consider whether, and if so how, our assessments of individual chambers might be made public and so inform the users of chambers’ services.
“We are conscious, however, that this would significantly raise the stakes of our supervision work, might well diminish its capacity to promote useful change in chambers’ approaches and certainly lead to greater contestability.”
The BSB said many barristers attending its roundtables referred to the need for a “one-stop shop” in terms of regulations and guidance.
The BSB said it agreed with “the spirit of this”, but thought the best way forward was a “two-stop model of parallel sites” with a BSB website setting out regulatory requirements and associated guidance, and a Bar Council or other website “supporting good practice and further guidance”.
On the issue of outcomes or detailed rules, the BSB said: “Some chambers, particularly the larger and better resourced ones, recommended that the Bar Standards Board prescribe outcomes and leave it to chambers to determine how to deliver those outcomes.
“Smaller and medium chambers, probably in the majority, on the other hand represented that their primary requirement was for clarity and that this was best provided by stating what, exactly, they were required to do.”
The BSB said it wanted to ensure that chambers “consciously focus” on their role in maintaining standards, which would only come about if chambers “actively debate these issues and if senior members of chambers identify with, and actively champion” them.
As a result, the regulator favoured expressing its expectations “largely in terms of outcomes, rather than in terms of process”.
The parallel Bar Council and other professional websites could help by providing examples of good practice and supporting guidance, but the BSB wanted to “avoid a state of affairs in which chambers could simply take template policies off the shelf with little or no active consideration or discussion”.
The regulator said it “would not be appropriate” to “graduate the obligations on chambers according to size”, not least because “women barristers and barristers from minoritised ethnic backgrounds tend to be over-represented in small and medium chambers”.
The answer lay in finding ways of supporting and boosting the capacity of smaller chambers, especially those chambers lacking professional administrative support.
“One answer may lie in voluntary consolidation between such chambers. The clarification of our requirements may itself serve as an incentive to some chambers to explore that option.”
Meanwhile, it was time for the BSB to “revisit” its definition of a chambers, since the existing definition put “undue emphasis on a physical place”.
A better approach “might instead be to define a chambers as any collective of barristers who come together under an agreed constitution or service agreement to facilitate their practice.”
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