Keeping Counsel in Suspense: BSB’s New Powers

On 21 May 2024, the Bar Standards Board (BSB) announced a rule change which establishes an expanded power to impose interim suspensions of barristers in specified cases. This is a practical and sensible update which brings barristers into line with most other regulated professions.

The BSB’s New Rules

The amended BSB rules give the Disciplinary Tribunal the power to impose interim restrictions on barristers in cases where a finding of misconduct has been made but the decision on sanction has been deferred to a later date. The new rules also extend the power of the BSB to refer a barrister to an interim suspension panel by adding a new ground for referral where it is “necessary to protect the public or is otherwise in the public interest.” This replaces a previous provision which permitted such referrals only “to protect the interests of clients (or former or potential clients).”

The new rule changes were made following consideration of responses to a public consultation published in June 2023 and subsequent approval from the Legal Services Board. The consultation document noted that interim measures to protect the public were “most likely to arise in cases involving sexual misconduct, discrimination, harassment, and dishonesty.” In its response to the consultation, the Bar Council supported the proposal and noted that these changes were also needed to protect the reputation of the profession.

New Powers Bring Barristers into Line with Other Regulated Professions

These new powers bring barristers and their regulator into line with other regulated professions, as most other regulators already have the power to impose interim restrictions in comparable circumstances. An overview of these powers for comparative purposes is set out below.

The General Medical Council (GMC) rules allow for an interim order to be made against a doctor when it is necessary to do so for the protection of members of the public, when it is otherwise desirable in the public interest (including to maintain public confidence and uphold proper standards of conduct and behaviour), or where it is in the interests of the doctor. This can be done either during the course of an investigation or where a case has been adjourned before concluding.

Most healthcare regulators, including the Nursing and Midwifery Council (NMC), Health & Care Professions Council (HCPC), General Pharmaceutical Council (GPhC), General Dental Council (GDC), General Osteopathic Council (GOC), and Social Work England (SWE), follow a similar template, allowing interim restrictions to be made for the protection of the public, where it is in the public interest and – as for doctors – if it is in the Registrant’s own interest. This has been the case for some considerable time.

Education regulators have also recently been given the power to impose interim restrictions in the public interest. The Education Workforce Council (EWC) can make interim suspension orders where they are necessary in the public interest. Similarly, the Teaching Regulation Agency (TRA) can make interim prohibition orders where it is in the public interest to do so.

In terms of other regulated legal professionals, solicitors are already subject to interim restrictions at any stage of regulatory proceedings. Interim conditions can be imposed against a solicitor where it is necessary for the protection of the public or in the public interest to do so, and a solicitor’s practising certificate or registration may be suspended where the solicitor has been convicted of an indictable offence or an offence involving dishonesty or deception.

Conclusion

The BSB’s recent rule change expands the circumstances under which interim suspensions and other restrictions can be imposed on barristers during regulatory proceedings. This is a welcome update which plugs a previous gap in the powers of the regulator, bringing it up to parity with almost all other professional regulators, and will help maintain public confidence in the profession going forward.

Vanessa Reid is a barrister at Mountford Chambers specialising in criminal defence and regulatory law. She is frequently instructed by professional regulators, and has extensive experience presenting cases before medical and healthcare, education, and sports tribunals.