19 June 2018

2016-19 at the Bar: Opportunities, Risks, and the Role of the Regulator

 

Sir Andrew Burns KCMG

Chair of the Bar Standards Board 

Tuesday 12 April 2016

 

 

Good evening.

We have been thinking hard recently about what is likely to happen at the Bar over the next three years -the opportunities and the risks- and consequently what therole of the BSBshould be as the regulator.

Now we possess neither a time machine nor a reliable crystal ball, so it is hard to speak with certainty. But I must say that, as a relative new-comer to this legal world, I am mightily relieved that I have at last a coherent picture to offer you -an Outlook and a Strategy- for what we think the future holds and how we propose to go about our work in the coming years.

This is the fourth three-year strategy we have published since the BSB came into being, but it is the first time we have rooted our strategy in a thorough examination of the risk environment of the Bar in England and Wales. I will talk about Strategy. But let me address up front those who suggest we are scare-mongering or negligently damaging the Bar's brand by identifying future risks.

Looking ahead to consider what MIGHT happen in the future is a fundamental aspect of being a regulator.

We need to consider trends within the market we regulate, because we need to anticipate future developments in order to make sure that our rules and regulatory actions enable the market to operate fairly. You may be sure that other regulators in the field are doing this anyway too.

Like all regulators, we act first and foremost in the public interest. So, our emphasis is always on what we need to do to enable the public - in our case, the consumers of legal services - to access consistently high-quality services provided by barristers.

Sometimes the interests of service consumers align with those of service providers. In fact usually they do.  But not always. 

And across the wide range of the BSB's supervision, enforcement and training work we pick up evidence of what is happening in the field which we monitor, analyse and investigate in fulfilment of our regulatory duties.

We will talk a lot about "risks" tonight.  But, I hope that we can balance that by talking a lot about "opportunities" too. After all in a regulatory context risk is another word for uncertainty. And not all uncertainties are either bad or resolvable.

We have a statutory duty to operate in a "risk-based" way. This means we have to consider what MIGHT go wrong in the future. That doesn't mean to say that it definitely WILL go wrong - or even that we THINK it will go wrong. It's just that we have a regulatory responsibility to make sure we do everything we can to prevent it going wrong, or if it does, to limit the impact.

This is not rocket science. Organisations up and down the country keep a weather eye on risk. Gauging the impact. Judging the likelihood. And coming up with mitigation strategies.

For example the likelihood of unethical behaviour is low. But the impact could be high. So even if we currently see no evidence of widespread wrongdoing, this is an area against which we must remain on guard.

And many things will go right in the future, or at least offer practitioners a real chance to explore new paths. Barristers have a keen sense of public duty and take great pride in what they do. So we do not have a negative view of the future. Not at all.

I am enormously impressed by the talent and conscientiousness of Barristers in England and Wales, and their public service commitment. I am very positive about the future. Positive that the Bar has the skills and the will to adapt to the challenges that if faces at the moment, and that it is sure to continue to face during the three years we are considering this evening.

As I say, the title of this evening's event is deliberate. It is as much about "opportunity" as it is about "risk".

As we explain in our new Strategic Plan there is a huge amount of regulatory business as usual ahead of us. And we are still finishing off work set in motion by my predecessor, Ruth Deech, three years ago. But there are fresh challenges and uncertainties coming over the horizon. I hope you will help us this evening to sharpen our focus and ensure we are not missing anything serious.

The Bar faces competing challenges from a wide variety of sources. These include commercial pressures from a wide range of regulated - and unregulated - providers, dealing with the ongoing effects of cuts to legal aid, and preparing to adapt to proposed technological changes to the court system. 

We know that there will be continuing pressure to reduce the costs of regulation and we await the results of the current study of legal services by the Competition and Markets Authority which may have an impact on the way legal services are provided.

Moreover you will be aware that, at the moment, there is considerable uncertainty about what the regulatory landscape for legal services will look like in the future. Under encouragement from the Treasury and BIS, the Ministry of Justice are about to issue a consultation paper about the current framework of regulation set out in the Legal Services Act of 2007, particularly as it affects the separation of regulatory and representative functions.

All this means that we are launching our new Strategic Plan in a time of flux.

We are not ourselves advocating radical change. A strong regulator which understands the barrister profession, and its critical role in the way justice is administered in England and Wales, but which at the same time keeps an eagle eye open for the public interest, seems to me incontestably valuable. The 2007 Legal Services Act set out a wholly viable way of doing this

If further changes to the regulatory framework are proposed, we shall be happy to debate the pros and cons. There will always be room for improvement.

However, the need for the Bar to have strong, effective and sustainable regulation will remain. In fact, we think it will become even more important than it is today.

And, whatever the many challenges facing the Bar at the moment, the Bar itself will still be here in three years' time. 

For the sake of the public that both we and the Bar serve, we want it to thrive and continue to stand proudly as a model for the rest of the world. A model for how to deliver justice for everybody, effectively, through advocacy standards of reliably high-quality

So, the approach that we took when developing our Strategic Plan for 2016-19, was to consider what was necessary for the future of regulation at the Bar.

The new Plan builds upon the BSB's progress over the last three years. Achievements during the lifetime of the previous plan have included the publication of the BSB Handbook in 2014, the introduction of a risk-based approach to supervision and enforcement, and the licensing of new legal businesses specialising in advocacy: known as "entities".

In the latest plan, we start by setting out the context and regulatory landscape in which we will be operating over the next three years. We describe what we want to achieve, and identify three key strategic aims.

We do all of this with reference to our statutory regulatory objectives. These underpin everything that we do.

Our Strategic Plan contains three strategic aims. These are:


 1.   Regulating in the public interest

We want to help the public better understand the fast-changing and complex market for legal services, so that users of those services can make informed choices and have a better understanding of their legal rights and duties as citizens.

 2.   Supporting those we regulate to face the future

We will assist the Bar in preserving its professional identity for the benefit of the public. This is particularly necessary where unregulated competition is being felt in areas of barristers' work. For example, the public needs to understand the difference between a fully qualified, regulated and insured barrister and a "McKenzie Friend" - whether paid or unpaid. We will help the profession to work more closely with solicitors and other legal professionals where that may offer advantages to the public.

We will ensure regulation does not pose unnecessary barriers to entering the market.  Legal education and training will be reformed to support the barristers of the future.

 3.   A strong and sustainable regulator

We will continue to position ourselves as the regulator of legal services which have advocacy, specialist legal advice and litigation at their core. There is a distinct public interest in us doing this because of the close relationship between those activities and the upholding of the rule of law and access to justice.

 

One of the challenges that we face is to deliver these strategic aims in a way that ensures value for money.

Our budget in 2016-17 represents a 4% reduction in direct operating costs compared with 2015-16.

Our overall budget - which includes the central resources that we share with the Bar Council - is also down in 2016-17.

We also make a commitment in our Strategic Plan to hold our level of expenditure on direct operating costs at the 2016-17 level over the duration of this plan.

We also publish annual Business Plans. Our plan for 2016-17 was published simultaneously with the Strategic Plan.

The Business Plan provides a greater level of detail about our proposed activity during the year in question. It includes more information about our everyday "business as usual" activity as a regulator.

We don't intend to discuss the 2016-17 Business Plan any further tonight, but you can download a copy of this from our website.

What we do intend to discuss in more detail tonight, is our Risk Outlook.

This is an important document - equal in importance to the Strategic Plan - because it is where we have summarised all of the evidence we have collated about the market, and where we outline what we consider to be the biggest risks to the delivery of the regulatory objectives.

I look forward to hearing your thoughts and reactions.