Neale: Barristers acting collectively can make a difference
The Bar Standards Board (BSB) has decided against making public the assessments it intends to make of individual chambers, as part of its new approach to overseeing them.
The regulator has also told sets that, while it would not actively promote mergers in a bid to boost the capacity of smaller chambers, “we do not see ‘merger’ as a dirty word”.
“It is, of course, for the barristers within a chambers to decide for themselves whether merger would bring benefits for them and for consumers, but merger is a well-established route to critical mass and economy of scale in other areas of economic activity – subject, of course, to maintaining competition both nationally and regionally”.
The board of the BSB has agreed the way forward on its oversight of chambers following a consultation launched nearly a year ago, which was followed by a series of roundtables across the country and feedback from clerks and others.
“Our aim here is to support culture change,” a paper before last week board meeting said. “We want all chambers in future to be more than a platform for the careers of individual barristers and to act as effective forces for high standards, equality and access for consumers.
“The best chambers already do this, but by no means all. Culture change will not come about by following set rules or by taking policies off a shelf.
“It will only occur if all barristers in a chambers recognise a collective responsibility to discuss these issues, gather relevant evidence, particularly on equality, and act on that evidence. In short, we want to encourage active engagement.”
The BSB has stressed that it is not placing new regulatory obligations on chambers but aiming instead to “clarify” existing practice management obligations so they are easier to comply with.
It will create a dedicated section of its website, with the requirements framed primarily in terms of outcomes, as “culture change is unlikely to come about through excessive prescription”.
But the BSB will mandate where it expects chambers to have policies in place or to take some other specific action, such as gathering evidence.
Nearly two-thirds of chambers have fewer than 50 members and “lack a critical mass of support”, relying on unpaid volunteers to lead them.
But the BSB has decided against exempting small chambers from its requirements: “Some regulatory requirements properly apply to chambers of all sizes, including to sole practitioners.
“This is true, for example, of our regulations bearing on transparency about the costs of services… We should not give any chambers a free pass.”
Chambers will have discretion in how to source support in meeting their regulatory requirements, which is where the idea of mergers was floated in the consultation.
“Most consultees opposed mergers or the sharing of back-office administrative support,” the regulator said. “Views were mixed on the sharing of policies and good practice, with some consultees enthusiastic and others concerned about the implications for competition.
“The BSB view is that, while none of these options should be ruled out, it is unnecessary for the regulator to endorse any one approach.
“Chambers should enter into arrangements that work for them provided they do not inhibit competition in the provision of barristers’ own services.”
The BSB will provide a “period of grace” for chambers to ensure they comply with the requirements and has pledged to take a “graduated” approach to supervision.
“Our first response will not, therefore, be to reach for enforcement action. Instead, we shall aim initially to encourage and to support chambers, including in considering the options to achieve greater critical mass.
“We shall, however, expect barristers to comply with practice management obligations and we shall take enforcement action in the face of persistent non-compliance.
“Which barristers are the subject of such action will be fact specific and depend on the allocation of responsibility within a non-compliant chambers and the roles played by individual barristers.”
Consultees agreed with the BSB’s decision not to revive the ‘BarMark’ quality scheme – such schemes tend to favour “well-resourced chambers, to be expensive to administer and to lose momentum over time”, it said.
Only the Legal Services Consumer Panel supported the idea in the consultation of the BSB making public its assessment of individual chambers.
The BSB said: “We judge that naming and shaming chambers which are not fully compliant will work against openness with the regulator and the supportive approach to compliance we want to promote.”
BSB director general Mark Neale said: “We believe that barristers acting collectively as members of chambers can make an important difference on standards, equality, access and a range of other important objectives.
“Many chambers already do so. We hope that our response to the consultation, including our new webpage, will support chambers in emulating best practice.”
The BSB is proposing to consult further on two changes that were not included in the original consultation: a requirement for chambers to publish governance arrangements and the creation of a new register of chambers.
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