Davies: more robust monitoring
The Bar Standards Board (BSB) has expressed regret and disappointment at the problems uncovered in the Inns of Court’s administration of disciplinary tribunals – and opened up a turf war over the role of the new tribunals service that is being set up as a result.
It has also warned the Council of the Inns of Court (COIC) that it will need to devote more resources to reforming the tribunal system than it had planned, and be more realistic about the amount of time and work required.
Earlier this year a range of problems emerged around the constitution of tribunal panels – which are run by COIC to keep them independent from the BSB – and a report in July by former Bar Council chairman Desmond Browne QC uncovered “systemic failures” in the administration of tribunals dating back several years.
The BSB has just published its response to the 82 recommendations made in the report and while it welcomed most of them, it told COIC that it must recognise “the limitations of its modern disciplinary responsibilities when developing the new service and… not seek to encroach on the BSB’s statutory remit” for the Bar’s disciplinary arrangements.
The BSB said the “extent of the omissions in the day-to-day management and administration revealed by the review has been disappointing”, while problems around the body which appoints tribunal members are “very much to be regretted”.
The main dispute focused on the Browne report’s suggestion that the BSB is exercising functions beyond those it should properly hold as prosecutor by holding adjudication panels, determining cases by consent and deciding whether to refer to a three or five-person panel. It said the new tribunals service would be “a more appropriate body to exercise these functions”.
In its response the BSB strongly disagreed, saying this recommendation has “not been properly thought through, is impractical and shows a lack of understanding of the role of the tribunals service… [it] does not seem to acknowledge the wider statutory responsibilities of the BSB for all regulatory and disciplinary arrangements.
“In this regard, it is solely a matter for the BSB to decide what disciplinary functions it retains and which it decides to contract out to a third party. It is not for COIC or the tribunals service to determine which functions are appropriate or not for the BSB to perform.”
The BSB backed a range of recommendations on appointments aimed at removing any risk of a perception of bias, such as introducing a period of “quarantine” before former members of BSB and Bar Council members can become tribunal members, and prohibiting barristers currently on the prosecution panel from also sitting on tribunals.
Though welcoming the COIC action plan and indicative budget for reforming the system, the BSB said it was concerned that the plan has been not sufficiently thought through. “In some cases the timetable is unrealistic without significant additional resources being devoted which are not outlined in the report, in others the timescale seems unduly long. Further the budget does not take account of all the resources needed to implement the recommendations.”
The BSB noted that while no provision had been made for a range of necessary developments – like a website for the new service – £3,500 was budgeted to cover the cost of “Hall lunches” during 2013.
BSB director Dr Vanessa Davies said that despite the BSB's overall responsibility, COIC is an arm’s length organisation and to preserve the independence of the tribunals, it would not be appropriate for the BSB to be too involved in the minutiae of COIC’s administrative arrangements.
“That said, we clearly need to ensure more robust monitoring is in place and our detailed response to the COIC report outlines how this will be achieved. In particular we will be entering into a binding legal agreement with COIC, which requires COIC to become a legal entity. We are ensuring they commit the right level of resource to their adjudication services. We are creating a separate role within the BSB to provide on-going management of the contractual relationship to ensure that all service levels are met in the future.”
