The Legal Services Board is preparing in case the bar’s regulator misses a second deadline to meet an undertaking it agreed to after the Bar Council was found to have interfered with the Bar Standards Board’s changes to the bar’s ‘cab rank’ rule.
In 2013 the Bar Council accepted that its interference breached rules and agreed to a series of undertakings in its future dealings with the regulator. The undertakings included one that the BSB would carry out.
But the BSB failed to comply with the undertaking which required it to review whether it was appropriate for the cab rank rule to remain within its regulatory remit, missing its deadline in July last year.
In board papers seen by the Gazette, the LSB has said that ‘given the history’, it would be prudent to prepare for a scenario where the BSB does ‘not fully comply’ or ‘falls short of expectations’ when meeting its second and final deadline at the end of next month.
In a heavily redacted report authored by Kate Webb, head of regulatory reviews and investigations at the LSB, the super-regulator proposes an ‘early discussion on the board’s risk appetite and "tone" to set on this issue’.
The LSB is preparing for a range of possible outcomes ahead of the new deadline so that it can respond in a ‘timely, proportionate and targeted manner’, the paper reveals.
‘As the LSB’s powers to investigate and remedy poor regulator performance are at the heart of our oversight role, we have a keen interest in a satisfactory end to this investigation,’ it said.
The super-regulator listed risks it would face if the BSB failed to comply, which included its reputation suffering and ineffective levers for tackling the poor performance of regulators. But it redacted a list of factors that might lead the BSB to fail to comply, as well as most of the potential options open to the LSB in that event.
The options that were not redacted include ensuring a firewall is kept between the LSB’s analysis of any potential rule change application and any additional scrutiny it may need in assessing the bar regulator’s compliance, and ensuring any responses were carefully focused at the profession, regulators and the media.
A BSB spokesperson said: ‘The BSB has been in regular communication with the LSB about the progress we are making on this important issue. Our consultation on the cab rank rule closes next week and we fully expect to be able to complete the necessary work in line with the LSB’s deadline of the end of July.’
The LSB said that the information had been redacted under Section 36 of the Freedom of Information Act, which protects information when disclosure would ‘inhibit the free and rank provision of advice or exchange of views’.