RL Calling it out Professionals, their Regulators, Equity and Fairness

CALLING IT OUT:

PROFESSIONALS, THEIR REGULATORS, EQUITY AND FAIRNESS

By Master Vanessa Davies

What does it mean to be a professional? What is regulation as applied to professionals? Why and how do regulators and professionals intersect, and what do the boundaries of that intersection look like?

Concepts which today define a profession emerged nearly 500 years ago: exclusive rights of practice in return for guarantees of expertise and high standards; tests before admission to that exclusive circle; obligations of prudence, integrity, diligence – all for the wider public benefit. Professions are now seen as distinct from mere occupations, being granted status and privileges by the State, on the understanding that they serve a useful purpose for society. A professional makes a technical promise: they will control a complex body of knowledge and skill; and makes a moral promise: they will put that body of knowledge and skill to the public good, over their own selfinterests or indeed the interests of a government. They are expected to take personal responsibility for their work, and exercise independence of thought and judgement. They will have a Code to which they have voluntarily subscribed that sets out their ethical conduct towards others. Those Codes increasingly prescribe or guide conduct in relation to a professional’s activity beyond their immediate casework.

We can see how this manifests itself for example, for barristers and for doctors, in requirements laid down by the Bar Standards Board (BSB) in the Professional Statement for Barristers, in our Core Duties as laid out in The BSB Handbook, and by the General Medical Council (GMC) in Good Medical Practice.

There are many common features across these two professions, including the specific obligations to

Be active in the pursuit of equality and respect for diversity, not tolerating unlawful discrimination, in themselves or others. Be personally responsible for their professional practice and prepared to justify their decisions and actions

The BSB Handbook and Good Medical Practice are drafted in the second person – you will, you should, you must, you must not – because what’s in these documents bites on you, personally and individually. In signing up to our Codes we take on a heavy burden of obligation and high standards. And this can be hard to do: individual professionals are of course human beings. As Master Reader said in 2013:

“It is because not all professionals do live up to the high standards expected of them that we have professional regulators.”

Regulation exists to mitigate harm to individuals and the wider public or society: we regulate because there is some potential mischief to control in respect of something we hold to be good. It is “the intentional use of authority to affect behaviour of a different party according to a set of standards and involving instruments of information gathering and behaviour modification”. The study of regulation has evolved considerably, and multiple theories of regulation now exist. My own bias is towards public interest theories of regulation: I believe that some things should not be for sale, and that economics cannot drive everything.

Regulators do fundamentally the same four things:

They set the rules that whatever is being regulated must comply with.

They act as gatekeepers, permitting activities to happen when specific conditions are met through authorisation, licensing or registration.

They monitor what the regulated sectors, entities or individuals are doing.

They act when things go wrong, through remediation or enforcement activity – which can ultimately mean a loss of authorisation or registration or licence. Regulation seeks to incentivise positive behaviours and disincentivise negative behaviours in a social or economic system, particularly where inefficient operation (or failure) of a market does public harm, or where there are asymmetries of knowledge or power. Where there are such asymmetries, regulation emphasises values beyond market economics, which will not provide a sufficient framework for the range of “social and political values which are established in liberal democracies and can be seen as constitutional in nature”. The administration of justice, for example, relies on “a body of professionals who are concerned to preserve its integrity”.

It is a characteristic of the professions that individuals are regulated. This reflects the social and economic history of the professions, which have been largely ‘self-regulatory’ in this country and many others: those who practise the profession in question have had “the authority to delineate a sphere of expertise, establish qualifications for membership, limit competition from non-members, and impose ethical rules of conduct”.

In claiming self-regulatory authority, professions sought to create an “occupational realm shielded from both the market and the state. (…) They contended that regulation of practice was necessary to protect professional judgment from the potentially distorting effects of competitive forces” and that they “were better suited than government authorities, by virtue of expertise, to determine the institutional arrangements best suited to the exercise of that judgment”. The institutions of the professions became embedded in statute over the course of several centuries. By “institutions” I am referring, for example, to the General Council of the Bar until 2010, the Inns of Court, the medical Royal Colleges across the UK, the incarnation of the GMC until 2003.

But by the turn of the 21st century there were pressures for change.

For the medical profession, the Bristol Royal Infirmary Inquiry of 2002 and the Shipman Inquiry reports from 2002 – 2005 were the catalysts to transform the GMC from being “an organisation designed to look after the interests of doctors”, to the patient and public-interest focused body that the 1983 Medical Act presaged, and by a 2002 amendment, required. Regulation was professionalised, governance transformed to include eventually 50 per cent lay members on an openly appointed and not elected Council. An oversight regulatory regime across all the individual health professions’ regulators was established in 2012: the Professional Standards Authority (PSA).

For the legal professions, the pressures for change to the regulatory model were different. In very simple terms there was “erosion of (…) cultural and political authority” in a number of ways, not least of which was an apparent “failure to address incompetence and client neglect”, and a perceived “failure to prevent clients from engaging in conduct that harmed third parties or the legal system” itself. In England and Wales, post 1979 market liberalisation and deregulatory ideologies exerted pressure for reform of restrictive practices and promotion of competition and innovation, ostensibly for the benefit of consumers. The Legal Services Act of 2007 was “superimposed on the pre-existing (self) regulatory arrangements”– giving us a “regulatory framework which is far from straightforward for lawyers, let alone clients, to navigate”. Importantly, it contained the first real steps away from exclusive selfregulation of lawyers. At the Bar, regulatory responsibility passed in law and in practice to the independent BSB. This is required to have non-barrister majority governance. Like the other legal regulatory bodies, the BSB is subject to a statutory oversight regulator – Legal Services Board (LSB).

The health and legal regulators all now find themselves somewhere between those poles of market and state, enabled through their current governance arrangements to retain the “epistemic and stake-holder benefits of selfregulation while minimising the risk of self-interested behaviour and fostering public accountability”.

They conduct a (difficult) statutory balancing act between public interest and professional objectives.

A horologist reading this will know that a regulator – in very simple terms – is the device by which the rest of the timepiece is kept accurate. It’s a useful metaphor for the regulation of professionals because it demonstrates the absolute interconnectedness and mutual dependency of the many parts.

No regulator in a constitutional democracy is effective without the legitimisation, trust and confidence of those subject to its regulation, or of the public the regulated profession serves. In order to uphold the ‘contract’ the professions have with the public, regulators set great store by requiring those they regulate not to behave in a way that is likely to diminish trust and confidence which the public places in them or the profession. This is no less true in respect of the regulation of doctors, as GMP makes clear: “you must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession”. In this sphere as indeed others, the regulator holds the ring between the profession and the public: and must resolve any conflict in favour of the public interest.

Increasingly, regulators don’t just wait until things have gone wrong: they try to influence and promote behaviour that will better support the public interest. Professionals are all working in an organisational context or system, including at the selfemployed Bar, and regulators have become more ambitious about influencing those contexts and playing a role in not just keeping up with but also informing wider debates. Not least of these is in relation to equality, diversity and inclusion.

The BSB has, as a public body, general and specific duties under the 2010 Equality Act. It also has a statutory regulatory objective of “Encouraging an independent, strong, diverse and effective legal profession”. But quite rightly its rationale for its ambitions in this area go beyond the mere legal. In its Equality Strategy for 2020–2022, the BSB asserted two further reasons for what it does in this space:

A public interest rationale – A profession which is representative of the people it serves is more likely to meet the diverse needs of its clients, and in doing so will be more likely to maintain the trust and confidence of the public as well as support for the rule of law.

A moral rationale – “We believe that the promotion of equality and diversity is morally the right thing to do and helps to combat social injustice. It is unfair for a person to experience disadvantage or discrimination on the basis of difference.”

So how do those rationales get wired into the regulatory system and practice?

Regulatory Codes fundamentally show you how to belong to a professional group, and what will happen if you breach the Code: ultimately you will be excluded from the professional group. It would be naïve to suggest that there are not also unwritten cultural codes, which are exclusionary in quite a different way. But increasingly the latter – the ones that are highly normative, that are about fitting in rather than the more valuable fitting together – are rejected in favour of the explicit articulation of requirements for diversity and inclusion in the written regulatory Codes and Guidance.

To pursue an agenda about equality and inclusion regulators must engage with others, exercising a delicate combination of regulatory force and soft power – consistent with the structure of professional regulation which now exists, in a more sophisticated approach than hitherto.

In its new Equality Strategy for 2022–2025, the BSB set the following specific objectives (of four):

1. to clarify expectations of the profession on equality, diversity and inclusion, and highlight opportunities for change. 2. to hold the profession to account for reducing racial and other inequalities across the profession.

The very characteristics of being a professional that I have set out, require us, when we see or experience any form of discrimination or indeed other wrongdoing, to both “call it in”: take opportunities to explore more deeply and find mutual understanding across differences; and to “call it out”: let someone know that their words or actions are unacceptable and will not be tolerated. Principles of candour and transparency must operate between professionals and their regulators. Organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful.

Ours is a profession where we are expected to be fearless and courageous and to persevere in the representation of our clients and in upholding the rule of law. Where we don’t let our independence and integrity be compromised in our work or outside of it.

Why on earth would we do anything different in relation to diversity and inclusion and tackling the barriers to them? We, whether as individuals or as the institutions of the profession, should certainly demand no less perseverance, courage and fearlessness, independence and integrity from our regulator. And we should not fear, but actively engage with the regulator in what they have set out to do: we are all on the same side on this one.

Dr Vanessa Davies

Former Director General of the Bar Standards Board

For the full video recording: innertemple.org.uk/callingitout