Stone: Hard to disaggregate dissatisfaction with BSB from outcome of complaint
The Bar Standards Board (BSB) has the right approach to dealing with complaints about barristers’ conduct but there are “a large number of areas” for improvement, a major review has concluded.
The BSB’s main board yesterday accepted the recommendations of the report on its enforcement processes commissioned from City law firm Fieldfisher .
The regulator has had trouble meeting its time-based key performance indicators (KPIs) – that is, the time taken for various stages of the process – to the frustration of staff and disappointment of those reporting potential misconduct, Fieldfisher said.
Overall, it said, the enforcement procedure adopted by the BSB was “appropriate” and both Covid and a major cyber-attack on the BSB in April 2022 had impaired its performance.
But the issues were deeper than these incidents: “There is a very wide set of embedded challenges to the achievement of effective and satisfactory performance across nearly all aspects of the end-to-end assessment and enforcement processes and procedures.
“So improvements are needed throughout this whole process. We consider that these challenges are open to being successfully addressed by the BSB.”
Fieldfisher identified a number of clear themes that contributed to the problems, starting with the absence of “clear and direct management accountability for the effective functioning of the end-to-end enforcement system”.
Recommending the appointment of a director to head the function, the report said: “In our view this has resulted in many challenges not being addressed, even though they may have been identified.”
It also called for the creation of a “best-in-class” knowledge management environment, as staff struggled to access “the right knowledge and know-how”.
Shortcomings in the BSB’s case management systems “can mean that information on a case is not well-shared, processes are slowed down and made complicated and re-work is often required”.
There was also “a lack of good understanding in the minds of the public who submit reports over the role of the BSB”.
Around 1,500-1,700 reports are received a year and a survey of those who made them found that approaching 90% felt the BSB had not handled their report in the way they wanted, were not happy that the BSB’s decision was correct, and did not think their report had made a difference.
The issues led some to believe that the BSB and the Bar Tribunals and Adjudication Service (BTAS) “are in practice secretive and leaning towards protecting the profession rather than effectively regulating it”.
The report continued: “We consider that there is a risk that dissatisfaction with what many see as a futile process of reporting acts over time to reduce the stream of intelligence that the BSB receives from the public in respect of conduct breaches. So it is a serious matter for the BSB to address.”
Fieldfisher said helping the public better understand “the boundaries of the BSB’s role and what the BSB can realistically do” could reduce the number of inappropriate reports received – fewer than 15% currently get referred by the frontline contact and assessment team (CAT) for investigation.
There was substantial debate at the board meeting about public expectations, with BSB chair Kathryn Stone saying it was “very difficult to disaggregate dissatisfaction from outcome”.
The report stressed the need to improve the CAT’s performance – staff were constantly battling with a substantial backlog, it found, and there was “a lack of consistent resource to do the assessment work”.
It also recommended improvements to the investigation and enforcement team, as well to BTAS.
Fieldfisher reported on “excessive” delays at the investigation stage – in a sample of cases, barristers were not first contacted and provided with the allegation for a year, on average – while BTAS was only meeting its target of concluding cases within six months of them being referred in half of matters.
The board was told that the aim was to implement most of the recommendations in the current financial year, ending 31 March 2025, with the rest in the following year’s business plan.
Some of the issues raised by Fieldfisher – such as the IT system and better filtering out “inappropriate reports” – were already under consideration.
A paper before the board said: “We have already been looking at how we can improve the information available on our website as to what should and what should not be reported to us and we will also need to carefully consider the technological options available, including AI, and any impact a filtering approach could have on the receipt of information that might inform our wider approach to regulation of the Bar.”
Addressing the board, Bar Council chair Sam Townend said it was “particularly concerned” that only around 20 new investigations were being started every month but still the BSB was not meeting its KPIs.
Given the concerns expressed to Fieldfisher by both people making reports and the barristers subject to them about the speed with which the BSB worked, he said it was “surprising” that the BSB had recently agreed to change the KPI for investigations so that 80% should be completed within 38 weeks, rather than 25.
Mr Townend said that, with Fieldfisher saying implementing its recommendations would allow the BSB to meet the current KPIs, “we would ask you to revisit that decision”.
He also suggested that the BSB “dial back on some of the wider ambitions in relation to ‘before the event’ compliance activities” and focus on its enforcement performance.
Why does the Bar Council Chair get to speak during items at the BSB’s Board Meetings? At most (and thats pushing it already) the Bar Council should have an observer at the meeting.