Stone: LSB should provide benchmarking
The structure of regulation established by the Legal Services Act 2007 “does not work well”, the outgoing chair of the Bar Standards Board (BSB) declared last night.
Kathryn Stone specified the “failing” relationship between the oversight regulator, the Legal Services Board (LSB), and the frontline regulators like the BSB and Solicitors Regulation Authority.
In March, the pair – the largest of the legal regulators – were the only ones to fail their annual LSB performance assessments.
Ms Stone – in a farewell speech at Inner Temple Hall ahead of becoming HM Inspector of Constabulary and Fire and Rescue Authorities – said what her board saw of the BSB’s everyday performance bore “no relationship” to the LSB’s view.
“Legal services are a great UK success story marked by high levels of professional and ethical competence. Those services are manifestly not for the most part poorly regulated and it is deeply unhelpful to the reputation of a successful industry to say that they are,” she argued.
“So how has this come about? I think the answer lies in the difficulty which an oversight regulator necessarily has in exercising its functions at one remove from the front-line.
“The board and executive of the oversight regulator are no more experienced than the boards and executives they are overseeing.
“Oversight gives responsibility, but it does not, in itself, give sharper insight into, or greater care for, the public interest. Still less does it give a better understanding of the challenges of front-line regulation.”
Ms Stone argued that the LSB would do better to direct its efforts to supporting the boards of the frontline regulators and taking its assurance from the robustness of their own governance.
“For example, what would be truly helpful to my board in holding our executive team to account would be some reliable benchmarking of equivalent regulatory functions across the front-line. We could then see what good performance looked like, how our own compared and aim to emulate the best.
“Building on such benchmarking, it would be possible to develop consistent targets for what the public and professions should reasonably expect of regulation in delivering key functions.”
But the LSB did not provide such benchmarking, except by way of “the blunt instrument of the annual regulatory performance assessment”.
While identifying the “many strengths” of the Bar – including its traditions of independence and ethics – Ms Stone highlighted “the continuing challenge of promoting equality of opportunity at the Bar and of combatting bullying and harassment”.
She said: “When push comes to shove, polish all too often gets the better of potential. I know many chambers work really hard to combat this and their efforts are also appreciated…
“We know from multiple surveys that bullying and harassment are prevalent. Baroness Harman’s review is likely to reinforce this and remind us that whenever people in positions of power and authority have influence over the careers of others bullying, harassment and sexual misconduct are likely to follow.”
She suggested that chambers may well be “the real place where change begins”.
“The regulator can make rules. The Bar Council can offer guidance. But only chambers can provide the pupillage places needed for the next generation of barristers.
“I would strongly urge the profession to consider how the leadership of chambers can be better supported and how the professionalism of the clerks, practice managers, CEO’s and so on can be formalised to provide a framework of accountability shared with barristers and others working in chambers.”
Her speech also included a plea to understand that disciplinary action could take time: “Making a complaint about the person your career depends upon is a very difficult thing. We have to go at the pace the complainants want to go at and at the same time think about the subject of the complaint and their welfare too.
“Time is needed fairly to address legal and other challenges brought by barristers who are the subject of enforcement action.
“Time is needed for the directions hearing necessary to set a tribunal case in motion. More haste jeopardises fairness and puts at risk the right outcome. These are complicated and nuanced processes involving difficult decisions for real people. We should never sacrifice quality for speed.”
She spoke too about how the BSB did not need to demonstrate its independence by taking on the profession “at each and every opportunity”.
“Good regulation is not hostile regulation. It is measured and proportionate regulation which recognises when objectives can be better achieved through collaboration than through confrontation.”
Ms Stone highlighted areas where the BSB and Bar Council agreed and collaborated and revealed that they have just established a joining working party to help chambers overcome “the problems of scale which inhibit investment in such technologies and choke off growth”.
Writing on BlueSky this morning, renowned barrister Dinah Rose KC said: “I don’t feel qualified to comment on the Legal Services Board, but I have to say that its assessment of the BSB’S shortcomings is entirely consistent with my own experience. It would be good to see the BSB address and remedy its problems, rather than going on the attack against the LSB.”
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