New protocol explains how concerns involving bullying, harassment and sexual harassment will be handled and referred
The BSB and Bar Council have agreed a protocol setting out how reports of bullying, harassment and sexual harassment will be handled and referred between the regulator and Dame Maria Miller, who was appointed Commissioner for Conduct following a recommendation of Baroness Harman’s independent review of misconduct at the Bar.
Under the framework, allegations that may amount to serious misconduct will be referred to the BSB, while concerns below the regulatory threshold may be addressed by the commissioner through support, guidance and engagement with chambers, Inns or other appropriate bodies.
The organisations said the commissioner could “offer support to victims and complainants without triggering an obligation to report to the BSB”. Victims and their confidants will not be required to make a regulatory report. However, where information discloses a real risk of serious harm, the commissioner must make any necessary disclosures, without consent if required.
The protocol states: “Whilst the profession is best placed to manage the majority of instances of such behaviour, the regulator shall continue to set minimum standards of behaviour and obligations on individuals in relation to professional conduct and individual practice management, and take disciplinary action in cases that are sufficiently serious.”
Under rule C66 of the BSB Handbook, barristers must report serious misconduct by another barrister where they have reasonable grounds to believe it has occurred. During the pilot, that obligation may be discharged by reporting bullying, harassment or sexual harassment either to the BSB or to the commissioner.
The BSB also intends to recommend that concerns should be reported where there is a “reasonable suspicion” that such behaviour has occurred, in an effort to reduce barriers to reporting.
Serious misconduct is defined as behaviour that significantly breaches the standards expected of a barrister, may justify regulatory action and, subject to specified exceptions, must be reported to the BSB. In assessing whether the threshold has been crossed, the commissioner may consider the nature and impact of the conduct, whether it was sexual, predatory, violent or discriminatory, any abuse of power, the vulnerability of those affected, the seniority of the person accused, the risk of repetition and any pattern of behaviour.
Where allegations appear serious, or there is uncertainty about whether the threshold has been reached, the commissioner will generally refer them to the BSB. Reports from victims, confidants and non-barristers will normally require consent before referral unless safeguarding concerns make disclosure necessary.
Where a barrister reporting misconduct is neither the victim nor a confidant, the commissioner may consult the BSB’s contact and assessment team. The barrister will be notified of any proposed referral and given an opportunity to make representations.
The protocol also recognises that several allegations which fall below the regulatory threshold individually may collectively reveal a serious concern. Records will therefore be retained to identify patterns involving particular individuals, chambers or areas of practice.
Reports that do not justify regulatory action may still lead to intervention by the commissioner, including support in raising concerns within chambers or an Inn, advice on internal investigations and assistance with policies and procedures. However, the commissioner has no regulatory powers and cannot direct or influence a BSB investigation.
Reports will be received through the Talk to Spot online platform, allowing individuals to record incidents and contact the commissioner’s office without initially identifying themselves. Reports received during the working week are expected to be reviewed within 24 hours, with referrals to the BSB normally made within two working days once consent has been obtained.
The process is intended to be victim-centred, with the reporter and the commissioner’s office jointly deciding how to proceed. The commissioner will provide information and support but will not act as an intermediary or advocate on the reporter’s behalf.
Professor Christopher Bones, chair of the BSB, said: “We are delighted to be working together with the Bar Council in driving culture change and taking actions in response to the recommendations set out in the Harman report. This agreed protocol shows how we will carry out our respective roles to help support those who need our help in making reports concerning bullying, harassment and sexual harassment at the Bar.”
Kirsty Brimelow KC, chair of the Bar Council, added: “Eradicating misconduct and serious misconduct from Bar and Bench remain a priority and the Bar Council remains committed to taking all necessary steps to protect and support our profession. The protocol provides clarity for barristers and chambers on what constitutes serious misconduct and their responsibilities to report incidents.
“It aims to be of practical assistance to chambers and barristers. It is an important and welcomed step and the culmination of work between the Commissioner for Conduct, Dame Maria Miller, with the Bar Council and Bar Standards Board.”
Dame Maria Miller, the Bar Council’s Commissioner for Conduct, said: “This is a significant milestone in delivering the recommendations of Baroness Harman’s review and establishes a clear agreement of roles and responsibilities with the BSB.
“It has been a priority for me since taking up my role six months ago, as it means we can better support those who experience bullying, harassment and sexual harassment at the Bar. Importantly, it will help address the barriers to reporting identified in the Harman review.”
The protocol preserves the separation between the Bar Council’s representative functions and the BSB’s independent regulatory role. The organisations will share information where appropriate to ensure cases are referred correctly and to identify wider cultural or systemic concerns within the profession.
The agreement will be reviewed annually and may be assessed more frequently during its first year if enough reports are received to allow a meaningful evaluation.