Orlagh Kelly: We're welcoming Mark Neale, former Director General of the Bar Standards Board, to the Get Briefed podcast today. Mark, you've retired just ten or fourteen days ago and I know that you delivered a farewell speech to the stakeholders at the Bar, which we're going to talk about today. After six years at the Bar Standards Board, I'm sure you have a great deal to say. Would that be correct?

Mark Neale: Thank you very much for inviting me.

Orlagh Kelly: You've had three distinct careers spanning almost five decades — the civil service, financial services, and then legal regulation. Do you want to tell the audience a little about your career and how you arrived at the Bar Standards Board?

Mark Neale: The first of my three careers was in the civil service, where I spent 30 years, culminating in director general posts at the Home Office responsible for counterterrorism and serious organised crime, and then at the Treasury responsible for tax and welfare policy and budgets for Chancellors Brown and Darling. In 2010 I moved to financial services as chief executive of the Financial Services Compensation Scheme for almost a decade, ensuring FSCS could respond to another financial crisis and protect depositors. I spent a brief time as acting chief executive of the Lending Standards Board before taking up the role of Director General at the Bar Standards Board in February 2020.

Orlagh Kelly: February 2020 — so just weeks before COVID closed down society and the economy.

Mark Neale: Indeed. And I do think the Bar is unique. Unique in being a very individual profession — 18,000 barristers, 80% self-employed. Unique in having very long traditions. And unique in the challenge it poses for the regulator, which is responsible on one hand for overseeing all those individual barristers, and on the other for standing up for the public interest — the public interest in the rule of law and in the effective representation of individual consumers and businesses.

Orlagh Kelly: Were there moments during your six years that tested you operationally?

Mark Neale: COVID was hugely challenging within weeks of my arrival. The organisation rose magnificently to that challenge — we were able to improvise online examinations of civil and criminal litigation at fairly short notice, which enabled a generation of students to continue with their careers. We also learned lessons that stood us in good stead as we moved forward to examine ethics in pupillage. We had a significant cyber attack in 2022 which closed down all our systems for the best part of two months. Recovering from that was a challenge. But there were more underlying challenges, particularly around operational performance — maintaining high quality in our decisions while also ensuring those decisions were taken in a timely way.

Orlagh Kelly: Legal services regulation in England and Wales has a particular structure. It's not straightforward independent regulation, but neither is it self-regulation. How would you describe where the Bar Standards Board sits?

Mark Neale: It's a very complex picture. The Bar Standards Board is in fact an operating arm of the Bar Council, the body representing barristers professionally. Under the 2007 Act, the Bar Council delegated its regulatory functions to the Bar Standards Board. So in our decision-making we are independent, but we continue to be an operating arm of the Bar Council. That reflects a compromise in the 2007 Act — the logical position would have been to establish a wholly independent regulator, but that would have brought regulation within the boundaries of parliamentary oversight and made it responsible to the executive. The then government rightly thought that infringed too greatly on the independence of the legal professions. So we have this compromise in which the professional bodies are required to delegate regulatory functions to independent arms.

Orlagh Kelly: Is that structure still fit for purpose in 2026?

Mark Neale: I think it's very important that the legal professions remain independent of both Parliament and the Executive for obvious constitutional reasons. But it's also important that the frontline regulators do fulfil the underlying objectives of the 2007 reforms — to create independent regulators focused on the public interest, not the interests of the professions. One of the things I've attempted to do over six years is ensure the Bar Standards Board poses a robust challenge on public interest issues to the profession and to the Bar Council as the representative body.

Orlagh Kelly: Over those six years there have been times when the Bar Council and the Bar Standards Board have disagreed publicly, though respectfully. Is that tension required?

Mark Neale: Yes, I think it reflects the compromise reached in 2007. The profession not surprisingly regards the Bar Standards Board as its regulator and would like it to operate within fairly narrow tramlines — qualification and disciplinary enforcement. Those are absolutely key regulatory functions, but I certainly see the Bar Standards Board as having a wider remit than that, as the reforms envisage.

Orlagh Kelly: I know you have a genuine affection for the profession. What has impressed you?

Mark Neale: It's an outstanding profession in many ways. There are barristers of great intellectual distinction. There are barristers who give up evenings and weekends to educate and develop the next generation. There are barristers who sacrifice earnings to represent vulnerable clients pro bono — I've always been a strong supporter of the barrister charity Advocate, which marshals that pro bono capacity. I don't see an ethical issue at the Bar. I think it's an ethical profession, characterised by intellectual distinction and a strong commitment to its own future.

Orlagh Kelly: And yet there are gaps?

Mark Neale: What I've described is inspired individualism — individual barristers sacrificing time for the future of the profession. But the profession also depends on leadership. Leadership to promote equality and diversity. Leadership to ensure investment is there — for example investment in AI, which will cut costs and improve the quality of barristers' services. Leadership on combating sexual harassment and bullying, which continues to be a significant challenge. And that leadership depends primarily on chambers, because it's chambers that do the recruitment, progress the careers of barristers, and put in place the policies needed to promote equality and protect people who experience harassment.

My challenge to the Bar, as I said in my farewell speech, is that I don't think chambers are currently performing those roles effectively, for two main reasons. One, there are too many chambers — 450, many of them small and lacking the critical mass to be effective. And two, there is a governance issue about who exactly is accountable for ensuring chambers policies and practices match up to the best.

Orlagh Kelly: What advice would you give chambers to counter those issues?

Mark Neale: Two areas. On fragmentation, I think there's a strong case for consolidation among chambers. The regulator shouldn't drive that, but should call out the issue. 450 chambers means a lot of duplication of cost and many chambers still underpowered in the areas I've described. On governance, chambers are at the moment loose confederations of the barristers who compose them. Those confederations need to empower the head of chambers to provide stronger leadership — and personally, I would advocate remunerating the head of chambers role so that he or she does not have divided accountabilities between their career and their chambers. The Bar Council provides a useful analogy: the chair and deputy chair of the Bar Council are both remunerated positions for the year they hold those roles, allowing them to focus on the responsibilities that come with it. I think the head of chambers role is analogous.

Orlagh Kelly: That's interesting — I'm not aware of any set of chambers that remunerates its head of chambers. Isn't that the role of the CEO or senior clerk?

Mark Neale: Clerks and chief executives are very important, yes. But a chief executive is the exception rather than the rule. Where one is lacking, I think there is a role for the head of chambers to fill — and that requires proper focus, which is difficult if the person also has a full barrister's practice.

Orlagh Kelly: Speaking of controversy — we live in a world with cancel culture. There's pressure on barristers not to represent certain clients: fossil fuel companies, for example. The Cab Rank Rule gets mentioned but isn't well understood outside the profession. What's your view?

Mark Neale: Public and social media pressure on barristers is very insidious. The principle of non-discrimination and the cab rank rule that gives it operational effect is absolutely the key to access to justice. It ensures barristers are not placed under insupportable pressure for representing people and causes that some in society consider against the public interest. Listeners to this podcast will have differing views about where the public interest lies. There are people who would prefer it if asylum seekers were not represented. There are people who would prefer it if fossil fuel companies were not represented. But the rule of law demands that they are effectively represented, and barristers should not be deterred from doing so by public pressure. The cab rank rule is also a safeguard against barristers in the commercial Bar coming under pressure from companies not to represent their competitors. It serves an important purpose: safeguarding access to justice.

Orlagh Kelly: And I'm also seeing an increased number of complaints to the BSB about barristers' personal views and social media activity, rather than their professional conduct. What's your view on that?

Mark Neale: There is quite rightly a very high bar to regulatory interference with free speech. But I would say to barristers: they need to maintain their independence, and in particular they need to maintain the confidence of all sections of the community that they can expect the Bar to represent them effectively if needed. Barristers who weigh in on highly contested issues in vehement terms put at risk that public confidence in the independence of the Bar. I would recommend that barristers engage in public debate, but do so in measured terms that don't cause sections of the community to feel that that barrister — or the Bar generally — could not effectively represent them.

Orlagh Kelly: With a caveat — barristers are entitled to their own political opinions?

Mark Neale: Absolutely. But express them in measured terms, not in vehement terms that undermine the confidence of some sections of our society.

Orlagh Kelly: The BSB has recently released guidance on social media complaints. Why those changes?

Mark Neale: We receive significant numbers of complaints every year about barristers' use of social media because the views expressed are disliked by the person making the complaint. We do look at all of those complaints and assess them appropriately against our rules. But where the complaint is not being made by somebody who's personally affected, it is reasonable for us not to provide the kind of in-depth explanation of our decisions that we would provide where someone's own personal interests are engaged. That's the change we've made — not a change to our obligation to properly assess the report, but a change to whether we'll provide a detailed account of our thinking.

Orlagh Kelly: How should the public — and barristers — judge whether the Bar Standards Board is doing a good job?

Mark Neale: The regulator should be judged in two distinct dimensions. One is how far it's effectively protecting the public interest — foreseeing risks to the public interest rising at the Bar and addressing those risks. The second is how operationally effective it is in discharging its key regulatory functions: enforcement, authorisation, qualification. We get judged much more on those operational measures. I think that's unfortunate, because it is the public interest we're ultimately there to serve. In my time, we've done a great deal to bring into the public domain important measures around public confidence in the profession and in regulation — measures that provide a useful insight into whether wider society has confidence in barristers and in the Bar Standards Board.

Orlagh Kelly: Enforcement timelines have been a persistent challenge for the BSB. What's the honest answer to those who say it's not good enough?

Mark Neale: The honest answer is that we do need to be faster in taking forward enforcement work. But it's also very important to understand that there is a balance to be struck between speed and the quality of decision-making. The Bar Standards Board has always set a very high priority on ensuring our decisions are fair and proportionate. Our decisions are all independently audited and we consistently get very high marks. Very few of our decisions are overturned in the courts — and just imagine the reaction from the profession if we were being overturned week in, week out. The price of that is meticulous work by colleagues, particularly in investigations, and that does take time. We have been improving our productivity and timeliness significantly, but there's still a little way to go. And there is help the profession itself could give us — some of the delay does arise from barristers looking for extra time or pleading ill health as a reason for not moving enforcement work forward as quickly as it could and should.

Orlagh Kelly: Cooperation from barristers themselves would assist?

Mark Neale: It certainly would. There's an obligation to cooperate with the regulator, and I'd like to see that observed in spirit as well as in letter. In particular, I would like to see barristers cooperating with enforcement work while also continuing to work at the Bar. What I find difficult to accept is circumstances where the barrister is continuing to practise but finding all kinds of reasons why they can't cooperate with us to resolve an enforcement case.

Orlagh Kelly: And for barristers who are ultimately found to have done nothing wrong — they will have suffered considerable stress going through that process.

Mark Neale: Absolutely, and it's very important that we support them. We are always very concerned to ensure the wellbeing of barristers subject to enforcement proceedings. We completely understand that it is stressful. But in many cases, the facts could relatively straightforwardly be resolved — and where that's the case, I'd like to see those cases moved forward to a fair conclusion promptly.

Orlagh Kelly: Turning to the future — the criminal Bar. There are concerns about underfunding, cases being cancelled, the potential removal of jury trials in a significant number of cases. What's the answer?

Mark Neale: There is next to no workforce planning for the Bar. The future supply of barristers is largely being determined by cumulative decisions by chambers and employers about pupillage places, and whether those cumulative decisions sum to the right answer — overall or by specialism — is very uncertain. The criminal Bar is a good illustration of this. What you can see at the moment is a disturbing trend of hollowing out in the middle years of practice. Increasing amounts of criminal work are being undertaken by barristers with fewer than three years' experience and by barristers with more than 28 years' experience. That spells trouble further down the track when those senior barristers retire, if we're not putting in place the pupillage places for the future and ensuring there are financial incentives to continue at the criminal Bar for younger barristers. The Ministry of Justice, the profession, and the regulator need to work together on this.

Orlagh Kelly: And there's currently no plan?

Mark Neale: There is no plan at the moment, no. A lot of regulation is focused on the conduct of individual barristers, but much less so on the degree to which the profession is going to be able to serve the public interest in future — including whether there are going to be enough barristers, specialism by specialism. The Ministry of Justice, the Bar Council and the Bar Standards Board do need to be across that to a greater extent than they have been.

Orlagh Kelly: And then there's AI. We've had publicly named cases of misuse of AI in professional legal work. Where do you think AI lands for the profession?

Mark Neale: The Bar Standards Board will be publishing guidance on the use of AI this spring, worked up in partnership with the Bar Council. What lies behind that is the need to ensure the safe adoption of AI in the interests of better and more cost-effective service by barristers. I have no doubt that AI can be adopted safely. It has tremendous potential to take out administrative tasks — in the criminal Bar, for example, drawing up timelines, summarising documents, laying the foundations of legal research. But the very important proviso is that the barrister must continue to be the decision taker. The barrister remains responsible for the advice given to the client and their advocacy on the client's behalf. If a barrister is using AI to facilitate research, they absolutely do need to ensure the cases it flags are real cases, not fictitious ones, and that their skeleton arguments stand up to professional scrutiny. AI is a tool. It is not AI substituting for the barrister's professional judgment.

Orlagh Kelly: One challenge I see is AI-native barristers coming through who may never have done things the hard way — building the fundamental skills that take years to develop. What happens to that expertise?

Mark Neale: That's a great example of the case for in-service training. The Inns are already looking at exactly that kind of training — effective use of AI and the due diligence needed — for barristers in mid-career. The Bar Standards Board and the profession need to be collaborative here, flag the need for that training, and encourage barristers to take it up.

Orlagh Kelly: One final question — looking back from your first day at the BSB, is there anything you would do differently?

Mark Neale: There are lots of individual decisions that, looking back, I would have taken differently. The online exams during COVID — we could have made them more accessible for disabled students, and we did learn important lessons there. But generally, I would adhere to the broad approach we adopted: ensuring the Bar Standards Board provided a robust challenge on public interest issues while also exercising our regulatory functions efficiently and effectively. Those are the two things the Bar Standards Board will need to do for the future, and there are good foundations there.

Orlagh Kelly: Congratulations on your retirement, Mark. It's been a wonderful conversation — a great deal to think about. Thank you so much for your time.

Mark Neale: Thank you. I've enjoyed our conversation.