What is the Regulatory Return and who has been asked to complete it?
We issued a Regulatory Return to a selection of around 350 chambers, BSB entities and sole practitioners. We have contacted those who have been selected. If you have not heard from us, you do not need to complete the Return.
The Regulatory Return is a way for us to assess risk across the Bar and levels of compliance with our rules. It is an exercise we last undertook in 2015-16, when it was known as the “Supervision Return”.
In the Return, we asked a range of questions including views on the risks that the profession faces, information about the processes and controls in key areas of practice, and some questions on specific topics that are currently a priority in our strategic plan, such as dealing with allegations of harassment.
Sole practitioners received a shorter, tailored version of the questionnaire.
We are mindful that the pandemic has impacted the Bar in different ways and were interested in understanding more about that. For example, whether new risks or opportunities have arisen from COVID-19, whether chambers and entities have modified their governance or working practices or whether it has led to changes in how barristers use technology in their work.
This was an opportunity for those selected to explain how effectively potential risks are being managed, how they ensure compliance with the BSB Handbook, and how high standards of practice are maintained. The Return enables us to target our resources at those chambers, entities, individuals or areas that would benefit from supervisory attention. Those managing risk effectively can expect a low level of supervision.
How we have used the information that has been submitted
We are very grateful for the huge effort that everyone has put into completing the Return, at a very difficult time. It has provided us with a great deal of information that we have already made very good use of:
Our proposed three-year strategy
In October 2021, we published for consultation our Proposed Strategy for the Next Three Years. This was informed by information reported through the Regulatory Returns, for example in relation to:
- The increase in remote hearings and remote working, accelerated by the pandemic, and the implications that has for supporting barrister competence, new skills needed and ensuring effective pupillage training.
- The role of technology and innovative solutions to meet consumer demand and improve access to justice.
- Promoting best practice in chambers’ oversight of standards and diversity.
Regulatory Decision-Making Annual Report
In November 2021, we published in our Regulatory Decision-Making Annual Report, which highlighted key themes about the impact of the pandemic on the profession.
Evaluation of the Price, Service and Redress Transparency Rules
The Bar transparency rules came into force in July 2019. Barristers’ practices had until January 2020 to comply. In October 2021, we published a report on our evaluation of the impact of the transparency rules on the profession. This drew on a question that we asked in the Return about what changes have been made in response to the rules and what impact has been observed since the changes were introduced. The evaluation shows that many chambers, barristers and BSB entities recognise the business benefits which greater transparency about their prices can bring.
We also asked recipients whether they are compliant with the rules. This forms part of ongoing work since January 2020 to test compliance and support improved levels of compliance with the rules. All those not previously assessed, and those previously assessed as non- or partially compliant as part of previous compliance checks (as set out in the report) were tested.
We are now reviewing the action taken by others who were tested as part of previous compliance checks, but who were not part of the Regulatory Return cohort. We will report further on the outcome of all this work in the first quarter of 2022. Our press release made it clear that we will take enforcement action where necessary to ensure compliance.
Our assessment of risk under the Money Laundering Regulations
The Regulations require us to publish an annual report on our supervisory activity. Our report was published in October 2021 and was informed by the information that we received in the Returns. It was also sent to all barristers that declared that they do work that engages the Regulations.
To be an effective risk-based regulator, we need accurate information about which barristers and entities conduct work that engages the Regulations. Whilst barristers have responded positively to our requirement to declare that they conduct relevant work, they have not always been clear about when the Regulations apply to their work, resulting in a large number of incorrect declarations. The Supervision Team has engaged widely with barristers to improve the accuracy of declarations and the relevant question in the Return has assisted us further in this.
Of a total of 477 barristers that declared at Authorisation to Practise in 2021 that they do work under the MLRs, 185 (39%) practise from chambers that said in the Return that their barristers have made the wrong declaration. This, combined with other work we have done this year, will bring the total number of barristers doing work under the MLRs down to under 300 barristers, which is more in line with what we would expect.
Of the remaining 102 barristers covered by the Regulatory Returns, we are in the process of assessing their inherent risk, based on what they have told us about the nature and scope of work that they do, and updating our risk assessment accordingly. Our further supervision plan for these will be fully formulated once we have completed our analysis and received the further information that is now being requested.
Responses to questions are being used to inform relevant projects, including the following:
- Responses have informed the problem definition phase of both the Ongoing Competence project and the Early Years of Practice project, and will feed into the development of policy changes as the projects progress. As an example, the responses to the latter question above provided a valuable prompt for discussion in roundtable events held with new and established practitioners regarding the experiences of, and support available to, those in their early years of practice.
- We asked a range of questions about how chambers and entities are creating an inclusive working environment. In addition to providing individual feedback, this information is being analysed by project teams. For example, the bullying and harassment project used the responses to gain a better understanding of how chambers can guard against allegations of bullying and harassment, and how they can effectively deal with reports of harassment when they occur. The responses showed that most chambers have an anti-harassment policy in place as required, but additional measures such as regular training in this area, or support put in place for those making reports is variable. The responses are also being used by the project team when making recommendations on how we can improve our processes for handling reports of bullying and harassment.