By Mark Neale, Director General, Bar Standards Board
Part of the stock-in-trade of constitutional lawyers is the concept of checks and balances – those safeguards built into laws and constitutions to prevent undesirable concentrations of power.
Probably the most famous working out of this doctrine was in the Federalist Papers – a propaganda exercise mounted by Hamilton, Madison and Jay (aka the Founding Fathers) to promote the ratification of the US Constitution which was then undergoing approval by the States.
Checks and balances are not, however, relevant only to weighty constitutional documents like the US Constitution. They also apply in many spheres where decisions profoundly affect people’s lives.
Regulators, particularly regulators of professions, do exactly that. Through our enforcement of the rules we set for entry to the Bar and for the conduct of barristers, the Bar Standards Board has a potentially decisive impact on people’s careers. We can, quite literally, make and break those careers.
It is entirely right, therefore, that we build checks and balances into our processes. We have highly skilled and committed people in the executive team at the Bar Standards Board. We can be trusted to deal fairly and dispassionately with the cases referred to us.
But we are not infallible. Many cases referred to us are complex. They often involve difficult judgements about both the facts and about how those facts relate to the law and to our rules. Reasonable people could sometimes come to differing views.
So we guard against a rush to judgement or just simply a wayward judgement with checks and balances. These checks and balances are of broadly two kinds.
First, we have two Independent Reviewers who review individual cases where the person making a report about a barrister feels that the decisions we have taken are wrong. They also look regularly at a random sample of cases every quarter to assess whether they have been handled in line with our policies and procedures.
Though the Independent Reviewers do not have decision-making powers of their own, they can and do make recommendations that can include taking a decision again.
The Independent Reviewers are a vital part of our quality assurance mechanisms and make six monthly reports to the Governance, Risk and Audit Committee. They provide invaluable feedback about the quality and consistency of our processes. They also provide an annual overview of their work in our annual Regulatory Decision-making report[1]. We published the latest report last month.
The report confirms the generally high quality of our decision-making. It is a very important source of assurance to our Board and to external stakeholders.
The second major check and balance is of a different kind.
The Independent Decision-Making Body (IDB), as its name implies, most certainly does have the power to make decisions. It plays a crucial role in our enforcement process. The IDB makes independent decisions about whether investigations undertaken by the executive should result in enforcement action, including at a Tribunal. The IDB also has the power to make findings of professional misconduct and impose sanctions with the barrister’s consent under our Determination by Consent procedure. It reviews authorisation decisions which are challenged by the applicant.
I guess that means that the IDB is more a balance than a check. It is not checking what the executive does, but does provide an independent balance in the decision-making process and inject a crucial barrister and lay perspective.
The IDB, which was established in 2019 as part of wider reforms of our regulatory decision-making, took over from the old Professional Conduct Committee and Authorisations Review Panel.
So what is the Independent Decision Making Body and how does it work?
Well, the IDB consists of 33 external people – 16 barristers and 17 lay people. Unlike the Professional Conduct Committee which used to meet with 30 plus members present at one time, IDB decisions are taken by panels of three or five members drawn from this pool. Lay members are always in the majority.
In the last full year – 2021/22 – 40 such panels were convened to take enforcement decisions and 10 panels to review authorisations decisions. The IDB is meeting more frequently this year as we accelerate our investigations and conclude long-running cases.
I have sat in on these panels – purely as a spectator I should emphasise – and can attest to the meticulous care, as well as to the independence, of their work. Panel members often have to absorb substantial bundles of evidence and relate that evidence to our rules. The reading in advance of a meeting can be formidable.
And the decision is far from the end of a Panel’s work. Just as much care is then taken to ensure that the decision itself and, importantly, the reasons for the decision, are fully and accurately recorded. The importance of doing so was underlined by the Ryan Eve case of 2021 when, unusually, both the executive and IDB did not explain adequately a decision not to waive entry requirements to the Bar.
To enhance accountability, the IDB also publishes an annual report on its work[2], the latest last month
So our Independent Reviewers and our Independent Decision-Making Body are hugely important to the fairness of our decisions. The Independent Reviewers provide a check on our decisions and, in doing so, provide safeguards of due process to those who use our services – those seeking to make reports on barristers and the barristers who are subject to those reports. They are a source of assurance to our Board and to external stakeholders.
The Independent Decision-making Body provides the balance of an external perspective – barrister and lay – in crucial decisions bearing on our enforcement and authorisations functions.
Mark Neale, Director General, Bar Standards Board
[1] https://www.barstandardsboard.org.uk/uploads/assets/66643ea0-de86-48d5-8cb9d3f777371609/Regulatory-Decision-Making-Annual-Report-2021-22.pdf
[2] https://www.barstandardsboard.org.uk/resources/press-releases/bsb-publishes-its-independent-decision-making-body-annual-report.html