BSB regulatory expectation of chambers series
This is the first in a series of blogs in which I explore the Bar Standards Board’s (BSB) regulatory expectations of barristers chambers. For the uninitiated, barristers are often self-employed and there is a long standing tradition going back several hundred years where barristers work together collectively (but retain their individual practices) in order to procure more effective and efficient services such as clerking, marketing, administration and finance operations.
However, chambers themselves are not regulated entities (unless they specifically elect and apply to be) and as such have no regulatory obligations other than those required of all businesses (such as GPDR, employment law etc.).
Due Diligence Obligations
Introduction
In October 2023, the BSB started a consultation on the basis that it considered that ‘chambers can play a role in fulfilling many of the regulatory objectives which the BSB must promote in taking forward its functions.’
This consultation focused on its expectations of chambers – or rather to be absolutely clear – of its expectations of barrister through chambers. It ended on 2 October 2024 with the BSB publishing its response to the consultation which set out its intentions. The outcome of these intentions is the BSB web page launched in January 2025 outlining the BSB’s regulatory expectations of chambers.
What is missing?
Controversially, I am going to start with what the BSB’s webpage does NOT include which are nonetheless regulatory obligations on barristers which they are required to have in place, if they are practising through chambers. Indeed, the section containing rules 89-90 of the BSB Code of Conduct is titled “Administration of chambers” and contains a number of provisions imposing obligations on barristers in relation to their chambers.
Many of these provisions have been carried forward in some way into the above web page but there are some which are noticeably missing:
- Rule C89.3 concerning the suitability of those employed by barristers – including through chambers.
- Rule C89.5 concerning arrangements for management of conflicts of interest and confidentiality of client’s affairs.
- Rule C89.6 concerning the competence of persons working within chambers. This rule requires barristers to ensure non-authorised persons working in chambers are:
- competent to carry out their duties; do so in a correct and efficient manner; are made aware of the provisions of the BSB Handbook which may affect or be relevant to the performance of their duties;
- do nothing which causes or substantially contributes to a breach of the BSB Handbook by any BSB authorised person within chambers.
In my view, this lack of inclusion by the BSB of these obligations on the web page is dangerous as there is a chance that barristers through chambers could assume the new web page contains all of the provisions which barristers through chambers are required to have in place. This means that consideration may not be given to rule C89 when barristers through chambers are conducting risk management and gap analysis exercises. Unfortunately, the BSB’s web page on its regulatory expectations of chambers does not contain reference to rule C89 or a reminder that barristers through chambers are still required to comply with any other relevant provisions in the BSB Code of Conduct.
Competence of those engaged by chambers
For the remainder of this blog, I am going to focus on rules C89.3 and c89.6 and the provisions which require barristers through chambers to take reasonable steps to ensure that persons engaged by chambers (whether on a PAYE basis or under a contract for services):
- are not disqualified persons;
- are competent to carry out their duties;
- carry out their duties in a correct and efficient manner;
- are made clearly aware of such provisions of the BSB Handbook as may affect or be relevant to their performance; and
- do nothing which causes or substantially contributes to a breach of the BSB Handbook by any members of chambers.
What must barristers through chambers do?
As a consequence of the above rules, barristers must require their chambers to carry our due diligence before employing or engaging individuals or organisations to carry out work on it’s behalf – this would equally apply to barristers who engage or employ resources directly.
The due diligence must continue throughout the employment and engagement. In an employment situation, this is likely to require specific terms in contracts of employment and robust HR systems in place in relation to effective and specific training, management and supervision of staff including grievance and misconduct procedures.
When dealing with outsourced providers, the due diligence would require equally strong provisions in the contract for services as well as regular monitoring or auditing of work and competence to ensure ongoing commitment to these factors.
Such processes will require demonstrably firm and appropriate action where conduct is identified which puts chambers and all of its barrister tenants at risk. It’s important to mention the reputational risk which would apply to all chambers tenants if such matters came to light so it is incumbent on barristers who become aware of such issues to raise these with the appropriate parties in chambers as soon as they become aware. Indeed, effective chambers governance arrangements would include such an obligation.
What are the risks?
As with all things, case studies and examples are the best way to highlight such factors so it seemed beneficial to use a real life example to highlight the risks.
A real life example
Many of us heard about the case last year where a chambers bought an application in which they were pursuing injunctions in respect of money it said had been wrongfully taken from it by its former credit control manager. The judgment of the application can be read here: Judgement of Charles Morrison in Pump Court Chambers Ltd v Gillian Brown (also known as Gillian Goodfield) on 19 September 2024
That judgement stated that the individual had been engaged for at least 5 years by the chambers and that when she left, it was discovered that she had stolen £2.75 million from the company’s bank account. It seems this had been admitted by the individual in an affidavit.
The crux of that hearing and the publicity afterwards related to the fact that the chambers had asked for (and initially been granted) an anonymity order for the case to be heard in private.
I have wondered since, what action, if any, has been taken by the BSB following publication of this case given that with the amount of money and length of time over which the theft took place, there was highly likely to be a breach of rule C89.6 by the barristers in chambers. I imagine the extent of any regulatory investigation would concern the following provisions of the Legal Services Act 2007:
- regulatory objective 1(a) which is “protecting and promoting the public interest”;
- regulatory objective 1(d) which is “protecting and promoting the interests of consumers”; and
- regulatory objective 1(i), the newly added “promoting the prevention and detection of economic crime”.
Rule C90 of the BSB Code of Conduct goes on to say that the steps it is reasonable for individual barristers to take depend on the circumstances such as the arrangements in place in chambers for the management of chambers and the role which individual barristers play in those arrangements.
This leads to questions about the roles and responsibilities of individual barristers to the regulatory duties and to each other. It is noted that the limited company named in the proceedings currently has 14 barrister directors which is around 10% of what seems to be the current membership.
It would be interesting to know what duties the barristers owe to each other under the contractual/constitutional arrangements.
Other scenarios
Suspected theft by employee and barristers responsibilities
Imagine another scenario where an employee of a chambers was investigated for abuse of a chambers credit card and expenses policy, which if the allegations were founded, would be theft.
What are the obligations on chambers and barristers in such a case?
In accordance with rule C89.6 above, barristers are obligated to take reasonable steps to ensure that all persons carry out their duties in a correct manner, are competent to carry out their duties and do nothing which causes or substantially contributes to any breaches of the BSB Handbook by any barrister member.
In practice, this would require barrister members to ensure that chambers had in place robust financial controls and HR policies and procedures to allow an effective and accurate investigation to take place. It would also be important for barristers to be confident that their chambers take firm and appropriate action where such conduct occurs, which places chambers and all its members at risk.
Now, let’s say that employee concerned is dismissed and moves to another chambers and some barristers move with the employee to join the new chambers as well.
If these barristers know or suspect that the employee was dismissed for theft, then it is strongly arguable that they owe an obligation to their new chambers and its barrister members to disclose this fact as part of their obligations under rule C89.3 in ensuring that all persons working in chambers are competent to carry our their duties and C89.6d. that they do nothing which causes or substantially contributes to a breach of the BSB Handbook.
Sexual harassment by an employee of chambers
A big topic at the Bar of England and Wales at the moment is sexual harassment and when chambers are also an employer, they have obligations under The Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force in October 2024. This requires employers to take reasonable steps to prevent sexual harassment. A breach of this new duty can result in an uplift in compensation by 25%.
Summary
As we can see, the BSB Handbook already contains specific requirements which barristers through chambers must ensure are in place. These requirements have been significantly increased with the BSB’s new regulatory expectations of chambers page.
Over the coming weeks, we will share our thoughts on the other requirements from the BSB so follow us on Linked In to keep up to date.
If you would like to discuss this topic further or find out how Beyond Compliance can help you or your chambers ensure you meet your regulatory obligations or conduct due diligence, please contact us at [email protected] or call us on 0121 288 5227.
