The super-regulator delivered its verdict this week on the eight legal services regulators, in its annual assessment of their work. It used a traffic light system to rate each one as ‘sufficient’ (green), ‘partial’ (amber) or ‘insufficient’ (red) across the same five categories of: regulatory approach, authorisation, supervision, enforcement and well-led.
The Costs Lawyers Standards Board performed best, with a green light in all five categories.
The only regulator deemed ‘insufficient’ was the Bar Standards Board (BSB), which received a red light rating for both ‘well-led’ and ‘enforcement’ and amber for the remaining three categories.
In a damning assessment, the LSB stated: ‘Our concerns about the BSB’s performance have been aggravated by a pattern of piecemeal and reactive responses to specific performance issues raised by the LSB, during the past year; for example in respect of the risk posed by intermediaries such as Absolute Barrister, the risks associated with sanctions non-compliance by the regulated community and the handling of complaints arising from the Post Office scandal.’
Absolute Barrister was an online direct access service set up by two barristers, which went bankrupt.
The LSB report warned that ‘following recent LSB engagement with the BSB Board we remain concerned that the BSB Board has not grasped the magnitude of these challenges, has been unable to provide us with assurance that it has taken ownership of the scale of concerns and the scope of improvement needed nor has the determination to drive the step change in culture, capability and performance required for the BSB to meet the well-led standard.
‘We acknowledge that the BSB has undertaken lessons learned exercises, from its mishandling of the August 2020 Bar exams, and the mishandling of the Ryan Eve case, which was heavily criticised by the High Court.
'Time will tell whether the BSB has fully embedded the lessons learned in its work’.
The High Court slated the BSB last year for forcing overseas student Ryan Eve off the Bar Professional Training Course after wrongly raising doubts about his degree. Aspiring barristers also faced difficulties when taking the August 2020 Bar exams.
On ‘enforcement’, the LSB said it had ‘concerns with the BSB in relation to its handling of complaints arising out of the Post Office miscarriage of justice’, where faulty Horizon IT led to multiple cases of sub-postmasters being wrongfully accused of theft and prosecuted by the Post Office.
‘In particular, we are concerned that its decision to pause the investigation of barristers implicated in the Post Office inquiry, appears to have been made without appropriate senior or Board oversight. Given that this is one of the most significant miscarriages of justice in recent times, with a significant potential impact on public trust, we would have expected the BSB to have ensured appropriate oversight of its decision… and demonstrated a greater appetite to seek to progress its investigation in the public interest’.
The Solicitors Regulation Authority (SRA) was green across the board apart from amber for ‘enforcement’.
CILEX, the Council of Licensed Conveyancers, the Faculty Office and Intellectual Property Regulation Board received three green and two amber ratings. The Institute of Chartered Accountants in England and Wales received four greens and an amber rating for ‘well-led’.
However, the LSB identified a need for greater transparency at all the eight regulators, particularly in relation to how regulators make decisions, as well as scope to improve the way regulators demonstrated how evidence gathered was used in regulatory work.
Chris Nichols, LSB director of policy and regulation, said: ‘Overall, we have seen welcome improvement in some areas from most of them, and there are some examples of good practice for everyone to learn from and build on.
‘However, there continue to be areas where further improvement is needed. We expect regulators to operate transparently and ensure they have a sufficiently robust evidence base for their work. This is central to being a well-led organisation and ensures others, including the public, can understand how decisions are made and hold the regulator to account. For a number of regulators there is more work to do in this regard.
‘Over the coming year, we will roll out our new framework for assessing regulators' performance. We will follow up on the themes and issues identified in this assessment and expect all the regulators to continue working on improving their performance, benefiting the profession and ensuring legal services better meet the needs of society.’
