Rethinking enforcement strategy: Key proposals from the BSB's Enforcement Consultation

The Bar Standards Board (BSB) has recently launched a consultation as part of its work towards a much-needed modernisation of its enforcement functions. The consultation seeks feedback on proposed changes to the enforcement regulations under Part 5 of the BSB handbook. It is open until Wednesday 15 October 2025, with a second consultation on the draft regulations to follow in 2026. The new regulations are scheduled to come in effect in 2027.
 

There are 34 proposals within the Consultation document with the overarching aim of enhancing the effectiveness and efficiency of enforcement action taken by the BSB. The most significant for many barristers subject to BSB enforcement action, relate to the changes to publication and witness anonymity.

Open justice and the principles of transparency and accountability
 

The BSB is proposing the earlier publication of charges and is asking for views on when that should be: either when the charges are served by the BSB or when case management directions are made. Currently, details in respect of disciplinary proceedings are disclosed to the public approximately 14 days prior to the tribunal hearing and are limited to the name of the barrister and the provisions of the Code of Conduct that are alleged to have been breached. Particulars of charges are only made public at the start of the substantive hearing.

By bringing forward the publication of the summary of charges in the process, the natural outcome will be greater awareness of cases progressing through the disciplinary proceedings to prosecution. For barristers under investigation, under the terms of the new proposals, there will be an inevitable concern as to how earlier publication will impact their reputation and standing. The BSB has stated that there may be limited exceptions where an individual may apply to object to the publication or make applications for anonymity. However, it is not known where such exceptions would apply, and experience tells us that any exceptions will be sparingly applied.

This proposal, which is driving towards greater openness in proceedings, sits slightly uneasily with the other related new proposal which introduces an automatic presumption that any witness making an allegation of a sexual or violent nature will be anonymised. That anonymity will mean that the witness will not be referred to in public or named in the charges (although their identities will still be known to the BSB, barrister and tribunal panel). This is intended to make the process more accessible for witnesses, who may have previously been wary of bringing forward concerns without a guarantee of anonymity. It is hard to argue that anonymity is not the correct position for witnesses in most such cases. One risk that this provision might give rise to is that with complete impunity from accountability, false or exaggerated complaints may be more likely to be made. 

We outline some of the remaining key proposals below:

Confidentiality of reports and investigation

The BSB will retain the duty to keep reports and/or allegations assessed or investigated confidential, clarifying exceptions to this duty so that they are able to make disclosures for the purpose of furthering an investigation, e.g. through the sharing information with other regulators.

 

Accelerating cases: improved case management by the Bar Tribunals and Adjudication Service (BTAS) and introducing an overriding objective

The BSB proposes to introduce an overriding objective, for disciplinary tribunal cases to be dealt with justly and proportionately. BTAS will also be given the power to regulate its own procedure in the management of individual cases, to enable greater proactivity and flexibility subject to the Disciplinary Tribunal Rules. BTAS will be given sole responsibility for case management. Retaining the 10-week time frame to serve disciplinary charges with the barrister, rather than seeking agreement on proposed directions, a case management questionnaire would be issued which will cover aspects such as identifying matter of fact or law in issue, hearing length, number of anticipated witnesses, expert evidence and dates of availability.

 

Presumption of anonymity for witnesses in allegations of a sexual or violent nature

As it stands, special measures can be made by the tribunal for vulnerable witnesses and separately, applications can be made for anonymity, with a decision required either from a directions judge or tribunal panel. The BSB proposes to introduce a presumption that, by default, any witness making an allegation of a sexual or violent nature will be anonymised in the proceedings.

 

Simplifying grounds for a referral to an interim panel for an interim order

There are currently five alternative grounds under which a barrister may be referred to an interim order panel. The BSB proposes to streamline the process into just two grounds, those being: where an interim order is necessary (i) to protect the public or is otherwise in the public interest; or (ii) to protect the interests of clients (or former or potential clients).

 

The health regime

BSB propose to rebrand the fitness to practise regime as the “health regime” and to replace the current “incapacitation” test, relying on evidence instead of a barrister’s ability to practise being impaired on the grounds of a health condition. The proposal is intended to be more flexible and consider the management of both temporary and long-term conditions.

 

Length of fitness to practise orders

Orders are currently able to be imposed for a period not exceeding 6 months or indefinitely. The proposal is for either a maximum term of 36 months or indefinitely.

 

Disciplinary Tribunal panels

Under the current regime, there are both five-person and three-person panels, with the smaller panel having fewer sanctioning powers available to them. The BSB propose to introduce three-person panels only for all Disciplinary Tribunal proceedings, consisting of a practising barrister member, a lay member and a legally qualified chair.

The BSB also plan to remove the existing requirements for panel chairs and propose for the chair to be legally qualified with at least 15 years’ practising experience, including solicitors and CILEX lawyers, but not requiring the chair to be a judge or KC in all cases.  

 

The regulatory team at Kingsley Napley will be keeping a close eye on the outcome of the consultation, ahead of the scheduled implementation in 2027.

About the authors

Julie is a partner in the Regulatory team. She predominantly acts in the legal services sector, advising law firms, solicitors, and barristers on regulatory compliance, investigations, adjudication, enforcement, and prosecutions.

Lucy is a trainee solicitor at Kingsley Napley and is currently sitting in the Regulatory team as her fourth seat.