Orlagh Kelly: Well, today I am very honoured to have the lovely Mark Neale, the Director General from the Bar Standards Board, join us to talk about all things bar and how the Bar Standards Board are currently supporting the profession — and challenging the profession in some cases as well. Mark, thank you very much for joining the podcast.

Mark Neale: No, I'm delighted to be here. I think it's probably the first time I've ever been described as lovely.

Orlagh Kelly: I'm sure that's not true. I'm sure that's not true. And I know that you did attend our Leadership and Wellbeing conference in April because you were trying to essentially understand how you can support the bar through the Bar Standards Board with their wellbeing and all of the great things that we got an opportunity to talk about — but we'll come to that later on. What I wanted to do was learn a little bit about you personally, Mark, and what your background is and how you came to be in the role that you're in now.

Mark Neale: Yes, very, very happy to talk about it. I'm not a lawyer myself. And I think that's actually important. I think the regulator needs to be somebody of independence, independent of the profession. So my background was as a public servant. I was a civil servant for 30 years, culminating in a director general job at the Treasury where I was responsible for the budget under Chancellors Brown and Darling and for tax and welfare. Before that — just to show you how varied a civil service career can be — I was the director general for counterterrorism and serious organised crime in the Home Office, where I worked very closely with the law officers and with barristers. And then when I left the civil service, I spent the better part of a decade running the Financial Services Compensation Scheme in the immediate aftermath of the financial crisis — gearing up the Financial Services Compensation Scheme so that it could deal with another big bank failure or with the failure of other financial services businesses. So effectively this is my third career. I've been a civil servant, I've been in financial services and now I'm a regulator, the regulator of the bar.

Orlagh Kelly: Very good. Well, those are all very big jobs. What's your educational background? What did you want to do when you were at school and did you do it ultimately?

Mark Neale: Well, I guess I was always very much on the arts side. So I studied history at university and hugely enjoyed it. There was a moment when I might have become a professional historian because I did the civil service exams in the spring of 1979 and almost immediately the incoming Thatcher government banned additional recruitment to the civil service. So I wasn't able to take up the civil service place immediately and I started doing a doctoral thesis on the French Revolution. And there are still about 150 pages in my desk at home, which maybe one day I might pick up again.

Orlagh Kelly: Yes, exactly. When you move into end of career, you might pick that up again. And so what would you say, from the various careers that you have had, are the key learnings that you could share — for anyone starting out on their career now, trying to think about how to progress and be successful?

Mark Neale: Well, I think all of us need to strike a good balance between flexibility, agility, the willingness to take on new jobs and to learn new things on the one hand, and having some kind of career anchors on the other. Looking back on my career, I would say I kind of moved around a bit too much, particularly in the civil service, and never kind of really developed a sufficient anchor in any particular area. I worked in education, employment, treasury, Home Office. Possibly the public interest would be better served if I had developed more of a centre of expertise. But I think particularly in the current day and age, you do need to be flexible and able to pick up new issues and new challenges quickly.

Orlagh Kelly: Yeah, absolutely. So some level of understanding that change isn't a bad thing and that in fact it flexes your muscles and develops your comfort with discomfort. Absolutely. And so then I guess you were appointed as Director General of the Bar Standards Board, which is — even with the jobs that you've had in the past — a change for you. And so what was it like to take on that role?

Mark Neale: Well, I have found it absolutely fascinating and I've hugely enjoyed it, Orlagh. It is a sort of public sector, public interest role. So it kind of fits with the rest of my career as a regulator. We're here to promote the public interest through our regulation of the bar. But I sort of guess my kind of first impressions were just of the strength of many of the bar's traditions and approaches. So for example, I got out and about just before COVID and sat in on some advocacy training for pupils and sat in on some training for pupil supervisors. And I was very struck by the commitment that senior barristers and indeed judges had to the future of the profession and the formation of the next generation of barristers. And I think that's hugely impressive. And you kind of come to realise just how much the bar and its kind of ethic depend on that voluntary commitment. But just as that has strengths from a regulatory perspective, it also has its challenges. Because it means that there is kind of lacking that kind of infrastructure of support that you would find in a law firm or a bigger organisation. And particularly following COVID, quite a lot of activity went online rather than taking place in chambers. I think that has been a challenge.

Orlagh Kelly: Absolutely. And so I mean, there is the argument, of course, that the bar is almost a self-sustaining profession — that ethos of continuing to train to the highest standard, the newest people coming into the profession, and most often the best and most senior advocates donating their time to do that training, I think is indicative of quite an ethical commitment to the profession generally — because of course people are really essentially training their competitors for free. So that doesn't happen in very many professions. And I think it's a wonderful part of the bar that's very well relied upon. So in a post-COVID world where there really has been a seismic shift in how individuals at the bar continue to work — by virtue of the fact that there's an opportunity to do more online hearings and actually execute work online, which didn't necessarily exist previously — there's a lot more working from home, but that means a lot less people being in chambers. What are your thoughts on how the bar is doing post-pandemic?

Mark Neale: Well, I think the bar is doing well because it kind of builds on deep traditions of professionalism and commitment to the ethics of the profession. But there are undoubtedly challenges that arise from changing working patterns. So for example, you know, pupils and younger barristers no longer get the easy exposure that they used to have to the advice of more seasoned barristers on, for example, ethical dilemmas that they may encounter. I think it's important that we reflect on how we can sustain professional ethics against that background. Clearly that has become an issue of great public interest following the Post Office scandal. So there's one dimension there. And also there's the important dimension of building professional competence and ensuring that professional standards keep pace with changing consumer expectations and the opportunities that new technologies provide. So one of the things we're certainly focused on as a regulator is how our qualification rules and standards we set need to evolve, not just at the point of qualification, but throughout barristers' careers to reflect some of those changes and challenges.

Orlagh Kelly: Absolutely. And so if there's someone listening in the audience who isn't quite sure about the role of the Bar Standards Board and why the Bar Standards Board was formed — when previously there was a Bar Council — can you give a précis as to essentially the role that the Bar Standards Board plays?

Mark Neale: We're a public interest regulator. Our primary responsibility is to ensure that the bar is working well for consumers and also of course supporting the rule of law. So that means we have important gatekeeping and disciplinary functions. We set the rules that govern how somebody can become a barrister, the skills and knowledge they must have. And also we deal with any infractions of professional ethics or standards through our enforcement process. But a bit more than that, we also as regulators need to look at how barristers collectively are serving the public, and how the market for barristers' services is working. So can consumers, can businesses get access to good quality, good value advice and advocacy when they need it? Is the bar a good reflection of the society it's serving? Is the market for barrister services competitive and working well for consumers? So those are those broader questions that I suppose are market questions as opposed to conduct questions in which we're also interested.

Orlagh Kelly: And so what are the key issues in your opinion that face the bar as a profession right now? If you had to name two or three things that you're thinking about.

Mark Neale: We're in fact about to consult on our strategy through to the end of the decade. So it's a kind of issue that we've certainly been reflecting on very much ourselves and we'll be inviting views in the autumn. But if I were picking out issues, I would certainly pick out the diversity and inclusion of the bar as an important issue. It's an area where the bar has made a lot of progress over the years and where I absolutely have no doubt of the commitment of the profession and the Bar Council to diversity. But we do see continuing challenges, particularly with progression at the bar — where we see that women barristers and barristers from minoritised backgrounds tend to earn lower fees than their white male counterparts, even when you control for seniority, geography, specialism. And like the Bar Council, we share the concern about the prevalence of bullying and harassment. And we'll very much want to work with Harriet Harman on her review, which we strongly welcome. I would say inclusion and diversity are important.

I think how the bar adapts to new technologies is going to be important and we're doing a great deal of work to understand how those technologies can be harnessed to the provision of better value services for consumers. We've seen some salutary examples in the United States of what can go wrong if lawyers don't do their due diligence on tools like AI — and of course it will remain the responsibility of barristers for the advice and advocacy that they provide.

Orlagh Kelly: A couple of things occur there, if you don't mind. Moving back to the equality and diversity and inclusion piece where you say the bar has made great progress. And I would certainly, when I'm working with chambers and talking to them, see quite a significant and very true commitment to making sure that inclusion really does happen on the ground. That said, I have seen in the legal press recently what has seemed to be a little bit of a tension between the Bar Council and the Bar Standards Board — if I may say so — around what the actual role of the Bar Standards Board could be. I think the Bar Council were suggesting that possibly you should leave it to them. What can you tell us a bit more about that and what you believe?

Mark Neale: Yes, I mean, I think it's a healthy tension. I think the regulator and the Bar Council will often be able to make common cause. Part of our job as the regulator is to mount a challenge on some of these key issues. And I think that the regulator does have a role to play in promoting diversity and inclusion. These are obviously at root cultural issues. So we're not going to regulate diversity and inclusion into existence. But I think that regulation can definitely support the cultural evolution that we all want to see. Partly by making clear in our code of conduct the sort of fundamental duties we expect of barristers. So we will be proposing — when we consult on the revision of our equality rules in a week or two's time — that we introduce a new core duty on barristers in their professional lives to promote equality and diversity.

And that obviously plays particularly into barristers' role in chambers and into their practice management. And then I think regulation can play a part in just being clear about the bedrock policies that all chambers should have in place — approaches to monitoring progression, for example, key policies on things like bullying and harassment, approaches to training, approaches to ensuring access for disabled pupils, barristers and clients to the chambers from which barristers are operating. So there's another way in which I think regulation can help. And then finally, and very relevant to Harriet Harman's review —

Our rules set some real hard red lines about the behaviours that are unacceptable. And we need absolutely to be seen through our enforcement work to be enforcing those red lines and taking action where barristers do bully or harass fellow barristers or pupils or clients.

Orlagh Kelly: Yeah, and clerks as well — as we have found through research, there's an entire ecosystem that can be impacted if there's that type of behaviour that goes untouched. And so I mean I can appreciate that regulation can be one of the tools which helps promote diversity, particularly if it can give clarity about what is expected of chambers. It's certainly the case that on occasion when there's a grey area, or something that isn't quite readable and understandable as to what the Bar Standards Board wants — and you know, I have heard that on occasion chambers are confused because on the one hand, you don't want to be overly specific. You want to be able to allow chambers and barristers within that chambers to meet the requirements in a way that works for them, depending on size, et cetera. But then that can also lead to such a grey area that no one's quite sure about what actually the Bar Standards Board want. Have you heard that complaint?

Mark Neale: Yes, indeed. Very much so. Although — and you know, we've been doing a great deal of work with chambers because I think you're absolutely right. We need to clarify for chambers what our expectations are. Kathryn Stone and I have been going up and down the country into all the circuits, talking about the role of chambers and how regulation can help shape chambers' oversight of key issues like diversity, professional standards, access for consumers.

Orlagh Kelly: And I mean another criticism often levelled — and I wonder what you would say to this — is that the potential for over-regulation and the cost that it puts actually on a chambers, which is not the entity regulated by the Bar Standards Board — it's the barristers within — and the fact that it does appear there are constantly and ever-changing higher expectations on chambers and how they meet these requirements.

Is there a chance that there's over-regulation of the profession on the horizon?

Mark Neale: I don't think so, Orlagh. The work that we're doing on chambers is about clarifying expectations rather than introducing new ones. But I think you've put your finger on one of the challenges for the profession. And it goes back to what I was saying about the profession's reliance to a large extent on voluntary effort and commitment. Chambers are very important intermediaries and they do have an important role to play in overseeing standards, diversity, access. Some chambers — the bigger ones — have a good infrastructure of administrative support to sustain that role, but we're very conscious that smaller and medium chambers don't necessarily have that infrastructure of support. And we're keen to encourage the profession to look at ways in which by networking, sharing good practice, support can be provided to those smaller chambers.

Orlagh Kelly: It is of course the fact that the larger sets of chambers typically now have someone on the staff side that can help manage it, but that is essentially — the cost of regulation is such that they literally have to employ people to help do that. And that can be sustained by larger sets on the basis there's more people to contribute to that salary cost, and it's not particularly sustainable in smaller sets. So the kickback was to say that chambers which are small should start to amalgamate — that didn't appear to be a particularly well-received idea. And further, the thought that people who are essentially paying for a regulatory salary of sorts, then being expected to share that resource with smaller chambers who are competitors, seemed that it wouldn't be that well-received either. Have you a better sense now that you've done the consultations around where the ideas that are going to work sit?

Mark Neale: Well, I think my conclusion would be that it's very much up to chambers themselves how they go about meeting our expectations and the rules we make around practice management. You know, some chambers may see advantage in consolidating or amalgamating. We're not as the regulator going to mandate that. But it was kind of interesting going around the circuits to hear quite a wide range of views about how smaller and medium chambers can gain access to support. I think it would be fair to say that though some chambers have reservations about sharing policies and good practice, we also came across plenty of examples of where chambers were doing exactly that, and didn't see that as inhibiting competition. So the best thing I think we can do is be clear about our regulations and expectations and leave it to chambers themselves to work out what the best ways of meeting those expectations are. And incidentally, I'm very pleased that the Bar Council has launched what I think is an excellent website to support chambers in doing just that.

Orlagh Kelly: Mm-hmm. Very good. And then I'm just thinking back to one of the comments that you made about how the bar changes with the pace of change in technology. And you referenced — somewhat obliquely, I guess — the case in New York State where one of the attorneys used ChatGPT, an AI bot, to do research for them. And much as I dislike legal research myself, and it does feel like that's a great opportunity, even I would realise that if it looks too good to be true, it probably is.

And in this instance — for anyone not aware of the case — it was a case against an airline. And ultimately what happened is ChatGPT had — the technical term is — hallucinated some cases, but essentially made up cases to support the application being made in that case, much to the confusion of the defendants and to the judiciary who couldn't find any of the case references at all. And it turned out, of course, it had essentially fabricated everything very convincingly. And the attorney — who I believe had about 30 years' experience as an advocate and an attorney, obviously, but very little technology experience — had assumed for the most part that this would work. However, not only did it not move the case forward clearly, but he was disciplined by the New York State Bar, I believe, to the tune of about seven thousand dollars, possibly something like that. And so that's the first time that — and I was actually hosting a series of events on ChatGPT and the bar and what it might mean, really as an exploratory workshop piece — because none of us really know the answers, but if we could start to get our heads together, we might start to figure out where the risks and opportunities sit. And it was during that series of workshops that this case hit the press, which was very interesting, because what it did show to me is the potential that that was a regulatory issue. So it might be something that the Bar Standards Board in the future, if this becomes more prevalent, may have to think about — that there will be a case or a disciplinary matter at some stage where this is something that you're considering. What are the Bar Standards Board's thoughts on AI and the role that you might have to play in that?

Mark Neale: Well, I guess the first thing to say is we looked closely at those New York cases and were fully satisfied that our existing core duties would have captured the professional malpractice involved. So it's not a question so much of changing our regulations, as I think ensuring that barristers themselves recognise both the opportunities that technology can provide to facilitate the role of research, but also that barristers recognise the due diligence that is needed both on the technologies and the results they produce, in order to ensure that the results are legally sound.

So, you know, our position would be that we don't want to prevent barristers at all from using these tools, but barristers will remain accountable for the advice that they give based on their use and need therefore to understand what these tools can and can't do.

Orlagh Kelly: And so what's interesting there is that an existing framework on regulation and requirements in the core duties is sufficiently agnostic — I guess that's maybe the best word — to allow for the fact that we're looking at generational change, particularly in terms of technology. And I'm sure the content of a disciplinary matter 30 years ago could be very different to what it is today or could be with AI.

However, the overarching regulatory framework is actually sufficiently flexible to allow that to be managed without having to identify other core duties. So that's at least useful and you're not starting from scratch on that. And it's interesting to hear that you do study what happens in other jurisdictions to understand what's going on. And so we've talked a little bit about equality and diversity. There are a lot of difficulties within the criminal justice system. I think most of you will be aware of the backlog of cases, the prisons are overcrowded. We're recording this in July, so there's just been a newly formed Labour government. Do you have any thoughts on what that will mean for the profession — this new Keir Starmer, who of course is a barrister himself, government and Prime Minister?

Mark Neale: Well, I think it's very early days. I think it was very encouraging to hear the remarks of the new Lord Chancellor on her installation, particularly in relation to the weight that the new government attaches to the important constitutional principle of the rule of law. And of course, as a regulator, we should be very happy to share with the new ministers the insights and intelligence that we have that bear on some of the challenges you've rightly highlighted, particularly in the criminal bar. And we look forward to having that dialogue.

Orlagh Kelly: Yes, and hopefully we'll see some positive steps forward. Absolutely. And so, you know, it's a quiet period — we're about to go into the end of term and into the legal vacation. Hopefully you're getting a bit of time off, Mark. Are you able to get away and do some travelling?

Mark Neale: We're heading off up to Cumberland for a couple of weeks in August. Lovely. We're looking forward to that.

Orlagh Kelly: Well, I hope the weather's good.

Mark Neale: Well, you can never tell, but it's a wonderful part of the country, whether the weather is good or bad.

Orlagh Kelly: Good. And will you do some walking there? Do you like to hike?

Mark Neale: Yeah, yeah, we'll do a lot of walking and we've got family out there so we're going to go and see lots of family members.

Orlagh Kelly: Very good. Well, listen, it's been lovely having you as our guest. Thank you so much for all of the information and for essentially articulating the work that the Bar Standards Board is doing and will be doing in the future to support the profession as best it can. I do hope that you'll join us again. There is an ever-changing body of work that the Bar Standards Board works on and new policies and consultations, and I'd love to have you back to talk about them as and when they come out so that the profession can essentially hear first-hand exactly why you're doing what you're doing and what they can expect in the future.

Mark Neale: Well, it's been great to chat, Orlagh. I'd be very, very happy to come back and take part in further podcasts because I think this is a great way of demonstrating that the regulator does have a human face.

Orlagh Kelly: Great, fantastic. Well, thank you very much, and enjoy your trip to Cumberland.

Mark Neale: Thank you very much.