Kathryn Stone OBE is leaving the Bar Standards Board this summer following appointment as HM Inspector of Constabulary and Fire and Rescue Authorities.
On Wednesday 25 June the BSB hoted an event at Inner Temple Hall attended by a mix of stakeholders including the barrister profession and individuals and organisations from across the legal services sector.
Kathryn reflected on her seven years spent on the Board, including three years as Chair and in a farewell speech will address three key themes, including the strengths and challenges for the Bar, the role of the regulator and the current regulatory framework. Kathryn said:
I’m going to talk to you candidly, but I assure as a critical friend about three things - what I see as the strengths of and challenges for the Bar, the role of the regulator and the current regulatory framework.
The Bar should be accessible for and to everyone – whatever their background. And once there, all barristers should deliver the highest quality services to the highest possible standards.
Chairing your regulator has been a huge privilege as well as a challenge. I began, and now end, my tenure as Chair with the utmost respect for barristers. I have worked hard to understand the profession and how it works, to listen to your concerns and to act to improve things whenever I can. Respect for and regulation of a profession can go hand in hand and respect should not be seen as being in the pocket of the profession being regulated.
The profession has many strengths. Very many barristers are personally of great intellectual distinction and have a strong ethical commitment to an independent Bar. The intellectual rigour and clear moral compass of our Bar is why people come from all over the world to use the services of our barristers and why the contribution made by the Bar to UK PLC is enormous.
The Bar of England and Wales is a global brand with a global reputation for excellence. The Bar has a distinctive role in advising and advocating on behalf of any person or organisation with a properly arguable case and, by doing so, in upholding access to justice and the rule of law. By acting on behalf of clients without discrimination, the Bar is upholding a long tradition of independence.
This independent tradition - reflected in the Cab Rank Rule is more important now than ever before when populism and popular causes threaten the rule of law. As the regulator of the Bar, we absolutely support the principle of non-discrimination. The Cab Rank rule is a fundamental principle of the Bar.
This ethical tradition is transmitted down the generations by the willingness of barristers and indeed of judges to give their time freely to the development of pupils and junior barristers. I have been really impressed by the advocacy and ethics training I have attended at the Inns and elsewhere. There is so much to admire and so much to conserve, however tradition alone won’t sustain the Bar for the future.
There are real challenges ahead, if not with us already, that require a response from the profession and from its regulator.
There is the challenge of the future supply of barristers themselves The profession as a whole is ageing and in the case of some specialisms, struggling to attract and retain the next generation. This is especially true of the Criminal Bar. The recent national survey by the Criminal Bar Association (CBA) made for sobering reading with under half of barristers remaining committed to primarily doing publicly funded criminal work. I have spoken to a number of criminal barristers who say they have never worked under such pressures and not a day goes by without a headline about the parlous state of the courts, the prisons, police resources and so on. Without the criminal Bar there is no criminal justice system.
I think consumers will rightly expect barristers to adopt new technologies with the capacity to improve the efficiency and cut the costs of their services. Is AI a substitute for barristers’ professional judgements? Certainly not now, but probably not in the future either. Can AI take out the drudgery – and cost - out of some legal research and out of the drawing up of timelines or summaries. Absolutely. I know many barristers are embracing AI and our recent Tech at the Bar research shows that whatever happens next at the Bar, AI will be part of it.
Above all, perhaps, there is the continuing challenge of promoting equality of opportunity at the Bar and of combatting bullying and harassment. I cannot emphasise enough that this challenge has nothing to do with ideology and everything to do with the compelling evidence, marshalled by the Bar Standards Board, that merit is still losing out to background. We know because our research tells us that students from minoritised backgrounds are less likely to gain a pupillage than equivalently qualified White students.
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. I have spoken to pupil barristers and young barristers who have huge potential and who go to extraordinary lengths to fund their careers.
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.
Meeting these challenges requires leadership and accountability, particularly at the chambers level and maybe chambers must become 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. Only chambers can oversee access for consumers and provide feedback to barristers on the quality of their service. Only chambers can, on behalf of their tenants, invest in AI and ensure it is used safely. Only chambers can ensure fair recruitment, monitor the distribution of work and promote a culture in which harassment is not tolerated. Of course, I am aware of the work of the employed Bar and organisations like the Government Legal Department, the Crown Prosecution Service and others are already ahead on this subject.
So, I invite you to think about a world in which traditional patterns of chambers governance and reliance on huge amounts of work, persuasion, cajoling and skill in bigger chambers by CEO’s, practice managers and clerks working with volunteer Heads of Chambers are no longer enough. One answer, which the Bar Standards Board proposed last Autumn in our consultation on the Equality Rules, is to sharpen the accountabilities of all the tenants for the policies of their chambers.
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.
That then brings me to the role of the regulator. I don’t see that role as confined, as some would like, simply to gatekeeping, supervision and enforcement functions. Those roles are certainly important, but we must carry out those functions with our public interest responsibilities in mind.
The Bar Standards Board must have a brain, as well as brawn. We need to be able to pack a punch, but we also need to have a strategy for the fight. Don’t get your jacket off unless you know what you’re doing next. That is why our current transformative Reform Programme emphasises both enhancing our intelligence and analytical capability and modernising the delivery of our functions. Great insight without efficient delivery would be ineffective. Great delivery without insight would be undirected.
Whatever the right and proportionate regulatory intervention for a specific risk, you have the right to expect that the Bar Standards Board will act efficiently. I would readily concede that our track record of delivering our regulatory functions has been mixed. We know that and have set about making changes and reforms to modernise delivery.
The first point to make here is to caution against viewing everything concerned with investigation through the prism of speed. Of course, public and professional confidence in the regulator and regulation requires a prompt response if standards are at risk or if misconduct occurs. And we can, and do, intervene promptly when risks arise. But speed is not the only thing that matters. Indeed, it’s not the most important thing. It is far more important that our decisions are fair and right. Our enforcement and other decisions – independently audited – have always been of high quality.
Enforcement work often takes time because time is needed to support and take evidence from witnesses. 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.
That is why the Bar Standards Board now holds the executive to account for its delivery of regulatory functions in four dimensions: speed, yes, certainly, but also the quality of decisions, productivity and the responsiveness of our service. I can promise further improvements over the next year in the speed and efficiency of our delivery but with no detriment to the quality of our decisions. We need to be more emotionally intelligent and balance the priorities of process and of people.
The role of the Bar Standards Board, as your regulator, is to form an independent view of risks to the public interest at the Bar. It is then to make prompt, fair and effective use of our regulatory functions to address those risks.
What, then, of the relationship with the profession itself and with its representative bodies; the Bar Council, the Inns, the Circuits, the specialist Bar associations, the training providers?
I have greatly appreciated my relationship with all these bodies. I have been grateful for the candour and challenges of our exchanges and for your support. It has been invaluable. These specialist bar associations and other bodies embody many the positive traditions of the profession. I gladly acknowledge the strong commitment to professional ethics and to the rule of law which activates them.
It is very much in the profession’s own interest that the regulator is seen to be robust in representing the public interest and mounting a reasoned challenge to the profession where we judge that there are risks to the rule of law, or to the independence and diversity of the profession, or to consumers’ access to high quality legal services. The Bar will not retain its own regulator if we are not seen to be effective. Public confidence in the Bar itself will be damaged if the regulator is not seen to be independent and up to the job.
Equally, however, I do not think that the Bar Standards Board should, or needs, to demonstrate 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.
There are certainly many opportunities for the regulator and the profession to collaborate because there are many issues on which we agree. We agree on the need to promote the diversity of the Bar so that the profession is a good reflection of the society it serves. We agree on the importance of sustaining the rule of law and access to legal services and, hence, upholding the Cab Rank Rule and the principle of non-discrimination. We agree on the need to support the profession in taking up new technologies, such as AI, with the potential to improve the efficiency and cut the costs of barristers’ services. I’m really pleased that the Bar Standards Board and the Bar Council has just established a joining working party to look at how we can help chambers overcome the problems of scale which inhibit investment in such technologies and choke off growth.
This is not to say we will do what the profession wants, or be subject to what is called “regulatory capture” – essentially doing your bidding, but helping us have a better understanding of your views and your experience really supports better outcomes – importantly in the public interest. In all these cases, the issue is not about ends - it’s about means.
A very good case in point here is the challenge of bullying and harassment at the Bar on which Baroness Harman will shortly report. We all know that this is at root a cultural issue. The close personal relationships which characterise the Bar, and indeed legal services more generally, give rise to risks when professional progression depends on the patronage of senior barristers. These same close-knit relationships also inhibit the reporting of bullying, harassment and sexual misconduct. Those who experience misconduct fear the power of perpetrators to derail their careers. This is not just at the Bar we have seen similar situations in the media, in the NHS, in the House of Lords.
Because of these cultural roots, the response, to be successful must be multi-faceted. Effective enforcement is certainly part of the answer. There must be an effective deterrent which is credible both to those perpetrating bullying, harassment, sexual misconduct and to those weighing up whether to report their experience. You will have heard and read about a recent case involving a high-profile barrister. I am not going to talk about individual cases. You will have read my apology to the witnesses, and I am sorry our process made it worse for them. The BSB knows it must work harder to respond differently to complainants, especially in cases of bullying, harassment and sexual misconduct. We have fast tracked the procurement of specialist support services and listened carefully to what victims have told us. I am sincerely sorry we got it wrong in the past, contributing to the trauma with our process and we are changing things now.
Effective enforcement will not be enough on its own to uproot the culture. That requires action at the level of chambers and of employers to demonstrate zero tolerance for bullying, harassment or sexual misconduct, to have in place the policies and support arrangements needed to ensure that harassment is called out and to ensure that those experiencing such behaviour are supported in making reports.
In 2025 we can’t allow a world in which everyone knows who a problem is but no one says. That brings me back to the challenge the barrister profession itself faces in ensuring that the leadership of chambers is supported to have effective policies and that those policies are backed by chambers’ tenants who are ultimately accountable for them. Regulation alone can’t do the job. This is one for all of us – whatever part we play in the eco system of the Bar.
I have reflected then extensively on the relationship between a professional regulator, like the Bar Standards Board, and the profession it regulates. I leave the role of Chair with my respect for the Bar undiminished, I can’t, I’m afraid, say the same for the structure of regulation established by the Legal Services Act 2007. It does not work well.
Where the current arrangements are failing in my view lies in the relationship between the oversight regulator, the Legal Services Board, and the front-line regulators, like the Bar Standards Board. That failure is manifest in the assessments the Legal Services Board has recently made of the regulatory effectiveness of the two biggest front-line regulators which oversee around 95% of the legal professionals in England and Wales. 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.
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.
Seen in this light, I think that oversight regulation would be better to direct its efforts to supporting the work of the boards of the front-line 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.
The Legal Services Board doesn’t provide such benchmarking, except by way of the blunt instrument of the annual regulatory performance assessment. Their distance means that they are at a distinct disadvantage in taking this approach. It leads to excessively detailed scrutiny of our actions and approaches and the diversion of significant resources across the year in providing reports which, inevitably, are stronger on accounts of activity than on outcome.
I am able to make this point because I do see the performance of the Bar Standards Board on a day-to-day basis and do, indeed, alongside my Board colleagues hold the executive team rigorously to account. What I see bears no relationship to the assessment of the Legal Services Board. And I have made my disappointment clear to the LSB. Again, not in a hostile way, in a way that is about open and honest relationships.
You are a remarkable profession, with long, but living, traditions which sustain professional excellence and high ethical standards. Traditions shouldn’t insulate the profession from change. Change is coming and will support new challenges. And those challenges then can best be addressed collectively, not individually. This is evolution and not revolution.
Please do see the Bar Standards Board as a critical friend. The leadership and staff are knowledgeable, skilled and experienced people. They want to see, as do you, the very best of the barrister profession. It is our responsibility to look at the profession from the perspective of the public interest. We shall not always agree about what the public interest demands. But often we shall and, where we do, we should work together to agree what mix interventions are best suited to advance the public interest.
Kathryn Stone OBE
Chair, The Bar Standards Boar
