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Bar Standards Board - the future of the Bar's complaints and disciplinary processes

Bar Standards Board - the future of the Bar's complaints and disciplinary processes

The Bar Standards Board was established in January 2006 as a result of the Bar Council separating its regulatory and representative functions. As the independent regulatory board of the Bar Council, they are responsible for regulating barristers called to the Bar in England and Wales. The BSB take decisions independently and in the public interest and have a distinct role from the Bar Council's representative function.

In July 2007, the Complaints Commissioner (Robert Behrens) published the report “A Strategic Review of the Complaints and Disciplinary Processes of the Bar Standards Board” (‘the Review’) following nine months research into nearly all aspects of the complaints system. The Commissioner made 65 recommendations for change, which were presented to the Bar Standards Board (‘the BSB’). The Review was published against the background of the passage of the Legal Services Bill through Parliament. The resulting Legal Services Act 2007 (‘the Act’) makes provision for the creation of the Office of Legal Complaints (‘OLC’), which will have statutory responsibility for dealing with complaints about the service provided by barristers. The Act does not remove responsibility from the BSB for dealing with professional misconduct and these powers will remain with the BSB after the Act comes into force in about 2010. The BSB believes that the recommendations contained in the Review are compatible with the terms of the Act and the proposed changes are likely to put the BSB in a position whereby the transition to involvement of the OLC will not require further radical overhaul of the Bar’s complaints system.
The BSB’s management of consultation on and implementation of the recommendations is undertaken by the Strategic Review Implementation Steering Group (‘the Steering Group’), consisting of 10 members and chaired by Sue Carr QC. The BSB accepted the 65 recommendations in principle and, in line with the Commissioner’s report, directed that a number of them should or might be subject to consultation. The BSB issued a public consultation paper on 12 December 2007 seeking views on the relevant recommendations. The consultation period formally closed on 29 February 2008.

Summary of BSB’s decisions
The BSB and the Steering Group have made the following decisions made on the recommendations addressed in the report:

• The BSB has determined that it is reasonable for the Commissioner to determine the route that a complaint should take based on the strategic objectives and criteria.;

• Whilst the BSB has decided that the concept of ‘Improper Behaviour’ (replacing the concept of “misconduct”) remains valid, it believes that further consideration needs to be given to the general principles underpinning the concept, the level of guidance needed to support the concept, and the implications it will have on the wider principles of the Code of Conduct. The BSB has therefore decided not to introduce ‘Improper Behaviour’ as part of the Review, but has asked the Steering Group to give further consideration as to whether and how this recommendation should be taken forward and to report back to the BSB later in the year;

• Although the BSB believes that allowing the Commissioner to adjudicate on non-disciplinary complaints is a proportionate, flexible and speedy method of resolving complaints, it has decided not to implement this recommendation due to the likely increase in staffing costs, and bearing in mind that these complaints will be transferred to the OLC in 2010. Instead, the BSB has decided that the Commissioner should have the power to refer complaints of IPS directly to an Adjudication Panel without reference to the Complaints Committee;

• In light of the BSB’s decision not to implement the recommendation that the Commissioner be able to adjudicate on non-disciplinary complaints, the issue of an appeal against such adjudication becomes obsolete. Appeals against decisions by the Adjudication Panel will be dealt with in accordance with the current Adjudication Panel appeal process;

• The BSB has decided to proceed with implementation of the recommendation on Determination by Agreement based on the supportive responses to the consultation, and the views of staff that no additional staffing resources will be required;

• The BSB has decided to proceed with implementation of the recommendation that the Complaints Committee be rebalanced in order to increase the proportion of lay membership as a method of increasing consumer confidence. It will also explore the options for increasing the participation of lay members in the day-to-day work of the Committee. The BSB will keep the efficacy and costs of implementing this recommendation under review;

• The BSB has decided to accept the recommendations that Informal Hearings and Summary Procedure Hearings be abolished and replaced with one Disciplinary Tribunal jurisdiction with three and five person panels;

• The BSB has agreed with the proposal to create more flexibility in sentencing for the Disciplinary Tribunal. It therefore has decided to introduce the option of suspended sentences. Additionally, the fine limit will be increased to £15,000 and a further sanction of the requirement to take and pass a professional ethics test will be introduced.
The next stage… The next stage for implementation of the recommendations that the BSB has accepted is that detailed proposals as to how they will operate will be prepared and then considered by the Standards Committee in June 2008. Following approval, the amendments to the relevant Annexes to the Code (in particular, Annexes J and K) will be drafted and then approved by the BSB in November. It is expected that the recommendations addressed in this report will be implemented by the end of November 2008.

AC 16/6/08


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