Bar Council and BSB slammed over ‘systematic’ regulatory failures

Bar leaders have been carpeted for applying unfair influence on regulators over changes to professional rules and for spying on independent private meetings.

In a damning report yesterday (26 November) that will increase calls for a unified legal profession front line regulator, the Legal Standards Board (LSB) issued coruscating criticism of the Bar Council for “failing to comply with the requirement to at all times act in a way which is compatible with the principle of regulatory independence”. 

According to the LSB’s investigation, the Bar Council’s actions represented a “systemic failure” that “had an adverse impact on protecting and promoting the public interest by undermining the principle of independent regulation”. He concluded by saying the representative body’s actions had been “unreasonable”.

A board spokesman told The Lawyer that the council had “interferred with the rule making role” of the BSB. He listed a charge sheet including instances where Bar Council members “effectively wrote policy papers for the BSB”, with the regulator’s view “being prejudiced in favour of the Bar Council’s view”.

The board – which is the legal profession’s umbrella regulator created under the Legal Services Act 2007 – went on to say that the representative body failed to comply with internal governance rules “to ensure the exercise of regulatory functions is independent of any representative functions”. 

The LSB specifically pointed to a deal cut over revisions to the notorious cab rank rule. According to the board, the BSB was pressured to accept Bar Council-backed amendments to the rule saying that if instructions are from individuals on a list of defaulting solicitors, the cab rank rule should not apply. 

The LSB also slated bar leaders for infiltrating sessions of BSB meetings that were not open to the public, which was in flagrant contravention of legislative provisions covering independent regulation.

According to the LSB, the Bar Council accepted the report’s findings and has agreed to a monitoring programme over the next six months. The LSB will formally censure bar leaders if it breaches the rules again. 

The lambasting comes at a difficult time for the Bar Council and the Bar Standards Board (BSB), with the LSB lobbying ministers to legislate for a single profession-wide front-line regulator. Suggestions that the current devolved regulatory regime is failing could only hasten the creation of a fused legal profession regulator. 

The profession-wide regulator also criticised the BSB for allowing itself to be pressured by the Bar Council. 

An LSB statement said the Bar Council accepted a raft of remedies following the report. Included are measures to prevent its representatives from attending non-public sessions of BSB meetings other than in exceptional circumstances, with the reasons for attendance documented and made public. 

The Bar Council must also accept that cab rank rule amendments must be operated by the BSB rather than the Bar Council. The BSB is tasked with reviewing the arrangements by the end of Jul 2014. 

A Bar Council spokesman declined to comment on the LSB findings.