Small But Mighty

From the beginning of January 2014 barristers will take control of their own Continuing Professional Development. Oliver Hanmer explains the new system and examines the effect of this small but important change on the working lives of barristers.

A seemingly small but strikingly significant change to barristers’ working lives happened this month. Amid the flurry of activity that the New Year brings, barristers will be forgiven for failing to notice a real break with an annual tradition. This year, for the first time, no-one will have received the regulator’s reminder for barristers to complete and return their Continuing Professional Development cards. And that is because, this year, the Bar Standards Board (BSB) is not requiring barristers to send them in for inspection.

 


However, barristers still have to undertake their set number of CPD hours each year and keep a record card; just don’t send them to the BSB.

Spot-checks

Rather than require 15,000 barristers to send in CPD cards, the BSB will be conducting spot-checks of record cards to make sure barristers are still undertaking CPD. Barristers are most likely to be selected for spot-checking if they have been the subject of disciplinary action in the past or if their chambers is a high priority for supervision (more on that later). There will also be an element of randomised checking too.

This new approach will apply to all barristers whether they are undertaking CPD through the New Practitioners’ Programme (during their first three years in practice) or through the Established Practitioners Programme (after three years in practice). Barristers selected for CPD spot-checking will be required to provide their record card for assessment by the BSB. Where there is evidence of non-compliance the BSB’s Supervision Team will work with that barrister to ensure that they complete the required amount and type of CPD. Anyone who refuses to provide their record card or who fails to undertake their required hours may be referred, as a last resort, to the BSB’s Professional Conduct Department for disciplinary action.

A devolution of responsibility

This is a key move towards a smarter regulation of the Bar and will save time, money and more effectively protect the public from the minority of those not keeping their training up-to-date. Making barristers responsible for the management of their CPD and the completion of their record cards demonstrates the trust that we place in the profession. Under the old system, requiring everyone to send in CPD cards made detecting that minority like a searching for a needle in a haystack. Identifying those most likely to fail to return their CPD cards, as well as random sampling, is a smarter way of enforcing the rule.

This revision to the regulation of CPD is the first step in a wider programme of change. The BSB has committed, in its response to the Legal and Education Training Review, to a move towards an outcomes based approach to CPD and will be consulting with the profession on proposals in that respect in 2014. Reform in the regulation of CPD represents represent a real devolution of responsibility to members of the Bar. Further, it is pivotal to the BSB becoming a more modern and efficient regulator as we work to bring about a system of smarter regulation for the Bar that results in better protection for the public.

Risk-based regulation and assessment

Risk-based regulation is at the core of our new approach to supervising chambers and sole practitioners. Under the new scheme, which comes into effect in January 2014, the BSB will assess how effectively chambers and sole practitioners are managing potential risks such as breaches of client confidentiality, inadequate pupillage training, and poor keeping of financial records. These will be considered in conjunction with the potential impact these risks might have on the public should they be left unattended and develop into more serious intractable issues. To do this, we will look at a number of different factors such as whether a chambers takes on pupils and undertakes Public Access work.

Again, the focus will be on ensuring the BSB can identify where problems are most likely to materialise rather than to try to monitor closely everyone at once. Leaving those with robust policies and procedures in place largely to “get on with it” leaves the BSB free to concentrate its efforts on the minority of chambers at risk of harming the public. In March of this year, chambers across England and Wales will receive an Impact Audit survey designed to identify first the impact that any potential breach of the regulatory rules would have on the public and consumers. Most chambers will then have to complete a Supervision Return form – detailing how effectively potential risks are being managed to help the BSB determine the likelihood of them actually materialising.

All chambers will be informed of the results of their likelihood assessments as well as the reasons for this. These results will not be publicly available. However, feedback to chambers on their assessment will alert them to the factors that have increased the chances of these risks materialising – as well as good practice measures that they could adopt to attempt to mitigate this. Here at the BSB, the Supervision Team will encourage chambers to engage with these issues and to keep the BSB informed of any improvements that have been made which might reduce these risks and, consequently, their assessment scores. We will also be able to signpost chambers to available guidance and support. Those chambers that are managing risks less effectively will be prioritised for supervision and so have more involvement and contact with the Supervision Team. In certain circumstances, we may also request that a chambers provides an action plan setting out how it intends to manage a particular risk or risks.

As risks have been identified before they develop into problems the BSB will focus on working in collaboration with those chambers and individuals to help them improve their risk rating. Where potentially serious, high-impact issues are identified, chambers will have a period of time in which to demonstrate that this issue has since been addressed. However, if after this time a chambers has not satisfactorily addressed these issues of non-compliance or if the chambers concerned has a poor history of compliance and engagement with the BSB, then these matters will be referred to the Professional Conduct Department to pursue enforcement action. This will also be the same if the non-compliance concerned is very serious. Public protection is paramount.

“Smarter” regulation: better for both the public and the profession

All this together – CPD, supervision, the new Handbook – should send a clear message both to barristers and their clients: that we are moving fast towards smarter regulation for the Bar, and better protection for the public. Where we can, we want to free up large swathes of the profession from superfluous rules, enable barristers to take advantage of a liberalising market to the benefits of their clients, and focus our efforts on the areas that pose the greatest risk to the public.

To find out more about the changes to CPD, visit www.barstandardsboard.org.uk/CPD or email bsbcontactus@barstandardsboard.org.uk.

Oliver Hanmer, Head of Quality at the Bar Standards Board.

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