I am now on my fifth Chair of the Bar and my fifth inaugural address. Sam Townend KC delivered his inaugural talk at Lincoln’s Inn last Tuesday.
I enjoy these occasions. They are a great opportunity to gauge the priorities and style of the new Chair. Judging by the turn-out, many others interested in the Bar and in legal services share my view. So the inaugural address doubles as a networking event.
Despite the annual turn-over of Chairs, there is plenty of continuity.
All the Chairs of the Bar in my time have been serious and impressive and motivated by high professional ideals. All have underlined the importance of diversity and inclusion to the future of the Bar. All have demonstrated concern for the rule of law and for access to justice.
There has always, in short, been much to agree with.
I agree, for example, with Sam Townend KC that that prolonged under-investment in the Courts and justice system has done damage: damage to the fabric of the Courts and the efficient transaction of justice; damage to the morale and retention of barristers and other lawyers working within justice system; damage to access to justice for the public.
In fact, I would go rather further than Sam and generalise from my experience of heading several HM Treasury spending teams. The persistent under-funding of any major public service always leads to trouble in the end.
You can get away with thrift for a year or two, but thrift as a long-term policy turns into neglect. The cost of repairing neglect – and the bill is always presented eventually – is usually higher than the continuing cost of funding the service at a sustainable level.
There will often be chances to invest to save – by digitising aspects of a service for example – and these should be seized. But be realistic about the savings available, especially in the case of services where you rely mostly on professional people – teachers, clinicians, lawyers – to deliver. You need to pay the professionals (and indeed everyone else involved in delivering the service) a competitive salary to recruit and retain the right people. Also, don’t bank the savings before they’re in the bag.
I spell out Neale’s general law of funding public services because the law applies to regulators too – also a public service.
And here I found Sam Townend’s address perplexing: what was sauce for the goose was not sauce for the gander.
The justice system should be properly funded, but the regulator, the Bar Standards Board, should be kept on short commons.
The Government should remunerate legal professionals appropriately – even take a leaf out of Prime Minister Thatcher’s book by replicating her 45% increase in police pay – but the Bar Standards Board was extravagant to tackle what independent research found was a near 20% shortfall in salaries of BSB people compared to regulatory averages for equivalent roles.
(Our Board’s aim, by the way, is to bring salaries at the BSB into line with median for all other regulators – small, medium and large – not to align with the biggest regulators. And we aim to do that, not immediately, but over five years.)
This is certainly not an argument against the need for an unrelenting focus on value for money. We agree with that.
But it is an argument that the Bar Standards Board – and regulators generally – deliver value to the public which, in turn, must be paid for.
Indeed, I think it is very much in the Bar Council’s own interest that the Bar Standards Board should be seen to deliver for the public because a separate regulator of the Bar will not long survive if it is not seen to do so.
So what does delivering value for the public consist of?
Well, first, it involves being an efficient and effective gatekeeper and disciplinarian for the profession. Consumers need to be assured that only professionally competent and ethically responsible people are able to practise as barristers. And consumers need to be confident that appropriate regulatory action will be taken against barristers who breach the professional and ethical duties set out in our Code of Conduct.
The Bar Council would, of course, agree with this, but may under-estimate how the costs of gatekeeping and enforcement have escalated. Since the beginning of the decade we have moved from an enforcement system which relied heavily on the voluntary contributions of barristers to a fully independent and professional service. We have seen a steady growth in the volume and complexity of claims, while simultaneously seeing a decline in our resilience as uncompetitive salaries have led to difficulties in recruiting and retaining people with the right skills.
A significant part of the growth in the Bar Standards Board’s costs in the last few years – commented on so unfavourably by Sam Townend KC - has been about addressing these issues in the interest of better and more resilient operational performance.
Gatekeeping and enforcement are not, however, the only things we do.
In exercising the regulatory functions delegated to us by the Bar Council, we have a statutory responsibility to promote other wider public interest objectives spelled out in section 1 of the Legal Services Act 2007. We must seek to improve access to justice; we must promote competition; we must foster diversity; we must increase public understanding of legal rights and duties; and, from this year, we must promote the prevention and detection of economic crime.
To do all these things, we need a robust strategy and policy function, staffed by people with deep regulatory experience and expertise and informed by flows of high quality intelligence and research. We must be willing to ask hard and often uncomfortable questions about settled ways of doing things at the Bar. Sometimes we shall be able to make common cause with the Bar on reform – as on diversity for example – but sometimes we may have to regulate in the public interest.
This capacity also has a cost and is not, I suspect, anything like as welcome to the Bar Council. As Sam Townend KC recognised, it is a cost which is not sensitive to the number of barristers. But it is a cost that the Bar Council needs to be willing to bear as the price of retaining its own independent regulator.
So , yes, the Bar Standards Board must ensure value for money. Our Board robustly challenges our plans and processes to that end. It is why we have now commissioned an independent review of the approach to enforcement introduced in 2019.
But the cost of effective regulation is a price worth paying and still comes in at well below a half of 1% of the total income of the Bar.