Hanmer: Focus on areas of greatest risk
The Bar Standards Board (BSB) has said it is open to “revisiting” its position that a reaccreditation scheme to ensure the competence of barristers is unnecessary.
The regulator made the comment in an action plan on ongoing competence. This followed a demand by the Legal Services Board (LSB) last summer that all frontline regulators produce action plans – the Solicitors Regulation Authority published its plan earlier this month.
Both the LSB and Legal Services Consumer Panel have expressed support for the formal reaccreditation of lawyers as a way of rooting out incompetence.
Under the LSB’s policy statement on ongoing competence, published last July, regulators must “routinely collect relevant information” about the competence of lawyers, whether through spot checks, competency tests or regular reaccreditation.
The BSB said in its action plan: “There is insufficient evidence to suggest that reaccreditation is necessary for barristers and we believe that the range of regulatory measures in place at present adequately assure standards of practice.
“We are open to revisiting that position if new evidence were to emerge that suggested that reaccreditation might be necessary (and would address the risks to standards of practice identified).”
Elsewhere in the action plan, the BSB said it would develop “a regulatory framework which sets expectations on chambers and employers to track competence of its members and take steps to address issues of poor performance”.
There would be another framework on the standards required from barristers in gathering and reflecting on feedback as part of the annual CPD process.
The BSB also plans to revisit its approach to CPD “to consider whether greater prescription is needed” and introduce an “updated random and risk-based thematic review of CPD compliance”.
The professional statement – which describes the knowledge, skills and aptitude that barristers should have as they enter the profession – will be reviewed in 2023/24 to “ensure that it accurately reflects current practice requirements both at the point of authorisation and throughout a barrister’s career”.
The regulator said it would amend the statement, “setting clear expectations for barristers to maintain and build on competence throughout their careers”.
It would consider whether new competences were required on remote advocacy, delivering high-quality services “utilising an increasing amount of technology”, embedding the skills involved in reflective practice and to “improve on ethical standards expected of practice at the Bar”.
The BSB carries out thematic spot checks of barristers’ competence declarations given every year as part of the authorisation to practise process.
It went on: “Whilst market forces is not the perfect solution to weed out incompetent practice, it is, given the predominantly referral nature of the Bar, a helpful starting point.
“Most barristers are working in a competitive environment in which their performance is regularly scrutinised by instructing solicitors and clients (particularly commercial clients).”
Many barristers who were not subject to “direct competitive pressure” were instructed by government agencies, such as the Crown Prosecution Service, which monitor performance.
Oliver Hanmer, director of regulatory operations at the BSB, commented: “It is our job to ensure that members of the public have access to competent barristers.
“Our programme of work aims to deliver that objective through proportionate, evidenced-based regulation which focuses on areas of greatest risk and which supports the profession to maintain standards of practice.”
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