Bar Council Meeting 29 September 2007
MINUTES OF THE BAR COUNCIL MEETING
HELD ON SATURDAY 29 SEPTEMBER 2007
IN THE PARLIAMENT CHAMBER, INNER TEMPLE
Present:
Geoffrey Vos QC - Chairman
Tim Dutton QC - Vice-Chairman
David Southern - Treasurer
David Hobart - Chief Executive
1. APOLOGIES
Apologies for absence were received from the Attorney General, Paul Darling QC, Peter Joyce QC, Gerard McDermott QC, David Melville QC, Peter Barr, Martha Cover, Adam Davis, Charles Hale, Kevin Leigh, Joanne Hacking, Tricia Howse, Helen Mahy, Karen Squibb-Williams and James Tayler
2. APPROVAL OF THE MINUTES
The minutes of the 14 July 2007 Bar Council meeting were approved, bar a change to the third paragraph of Item 9, dealing with the discussion on the Bar Quality Advisory Panel. For a more accurate reflection of events, it has been suggested the text ‘Melissa Coutino asked that Lay Magistrates might also be included as possible referrers. Conversely, Richard Atkins was concerned that referrers should be rather more senior than Magistrates Court Clerks ’ should be replaced with ‘Melissa Coutino noted that the poorest examples of advocacy were likely to be seen in the Magistrates Court and that the scheme was most needed here, so consideration ought to made of either Clerks or Lay Magistrates being included as possible referrers. Richard Atkins supported this point but had some reservations on whether Magistrates Court Clerks would want this responsibility or whether this should be the responsibility of the Lay Bench ’.
3. MATTERS ARISING
No matters arose.
4. STATEMENT BY THE CHAIRMAN
The Chairman congratulated Desmond Browne QC on his unopposed election to be the Vice-Chairman in 2008. In similarly congratulating Andrew Mitchell QC on his election to be Treasurer in 2008, the Chairman paid tribute to the hard work and considerable success achieved by David Southern in his long stint as Treasurer from 2005 to 2007. Strong support was voiced for the outgoing Treasurer.
The Chairman gave a round up of well-deserved encomia. Kevin Leigh had left the Bar Council, having been the PEBA representative for a year, and had joined a property and development company. After 21 years in practise, he would stay associated to 6 Pump Court. After three years as the Western Circuit Leader, Philip Mott QC had given way to Robin Tolson QC. Peter Collier QC had been appointed as the Recorder of Leeds, and had been replaced as Chairman of RemCom by Michael Bowes QC. Nick Cooke QC had been appointed as the Recorder of Cardiff, and an election would be held to choose his successor as Leader of the Wales Circuit. David Foskett QC had been appointed a High Court Judge in the QBD. Lord Goldsmith QC had joined Debevoise and Plimpton, and the Chairman wished him and the other departing Bar Council members well for the future.
Moving on to current political issues, the Chairman gave a brief account of the Labour Party Conference that he and Mark Hatcher had attended, and outlined his plans to attend the forthcoming Conservative Party Conference. He felt increasingly that the Bar was developing a more positive relationship with government, with a greater preparedness to collaborate shown by Jack Straw, the two Law Officers, Bridget Prentice and Lord Hunt. This mood was equally evident at the Legal Services Commission. The summer had seen three key concessions, on government amendments to the Legal Services Bill, on the prospects for a new Recorder’s competition, and the likelihood that OCOF for Crown Court activity will be deferred or perhaps excluded. The case for this latter point would be strengthened if we can demonstrate consistently that litigators’ and advocates’ GFS were the best way to contain spending within the Legal Aid budget. The Chairman promised to press government to recognise, appreciate and acknowledge publicly the valuable role of lawyers as public servants.
The Bar Quality Advisory Panel would be launched in October, subject to assurances that BMIF would not require notification of a practitioner’s reference to the BQAP. BQAP was as necessary as ever, with our need to be able to refute the DPP’s, and other anecdotal claims, that barristers were under-performing. Post-meeting note: the BMIF assurance was forthcoming, and BQAP was launched.
The Access to the Bar theme remained important, with a very successful first Social Mobility Foundation project with the Bar. Lord Neuberger would publish his report in November and, perhaps surprisingly in the light of the banking sector’s problems, the proposed loan scheme for BVC applicants was still on track. The government were proving generally responsive to ideas for access, and the relevant minister, Bill Rammell MP, was personally very supportive.
In setting the scene for the later agenda item on the 2008 budget, the Chairman highlighted the range of external adverse events that complicated the production of a balanced budget, such as the new statutory obligation to adopt the Scheme Specific Funding method for the Bar Council pension scheme, and some uncertain Bar Council building costs. The prospect of paying for some of the LSB/OLC start-up costs, and a rise of expected BSB regulatory costs, was partly offset by the BSB’s success in predicting improved income in 2008. In summary, the budget position for 2008 was uncomfortable, but better than one might have expected.
The Chairman drew attention to the successful Commonwealth Law Conference in Nairobi, and his working visit with a small team to Beijing and Shanghai to promote arbitration work for the Bar.
Finally, the Chairman encouraged members to attend the Bar Conference on 3 November, and the Pro Bono Conference on 17 November.
Sir Ivan Lawrence QC was quick to thank the Chairman for the continuous pressure he had applied to government, and he was particularly pleased at the thought of getting the merits of lawyers more firmly fixed in government’s thinking. But this would not be enough to solve the poor morale and pay of the Criminal Bar, now in many cases at a level below that of the police and nurses. Additionally, Sir Ivan questioned the relevance of the Attorney General to the Bar Council, and suggested an audit of the reasons for and against the Attorney General’s membership. The Chairman observed that the Criminal Bar were not that gloomy, with the Carter rises now flowing. The contribution of successive Attorneys General had been debated by the Kennedy Group, with the conclusion that the benefits of Bar Council membership – for example, a conduit for facts and a touchstone for mood – far outweighed any disadvantages.
John Cooper queried the role of the Chairman in his visit to China, and asked what representations he had made about Chinese human rights abuses, and the Chinese recourse to capital punishment. The Chairman acknowledged the difficulty in his position, and confirmed that he had not raised these questions at the Chinese Ministry of Justice. However, he had concentrated on the need for Chinese adherence to the Rule of Law, and believed that measured and persistent advocacy was the most likely way to induce change in a country that had every reason to engage with the West.
5. BAR COUNCIL MEMBERS 2007
The meeting noted the list of Bar Council members.
6. SELECTION OF MEMBERS FOR 2008 BAR COUNCIL
The meeting noted that nominations to replace the retiring employed and self-employed Members of the Bar Council should be returned to the Bar Council by 1700 hrs on Friday 19 October.
7. LEGAL SERVICES BILL
Clearly looking forward to 2009, Desmond Browne QC talked the talk of the role of Chairman’s blog in reaching Bar Council Members. Indeed, many Members already knew of the flip-flop-flip (not to be confused with mere ping-pong) in the Government’s position. From a starting point of our several advances in the Lords in the early summer, through several reverses in fortune at the Committee Stage in the Commons, came a remarkable change of mood and the tabling of several Government amendments for the third Reading in the Commons, now fixed for 15 October. These amendments go a considerable way to meeting our major concerns:
On Independence, there is an amendment to require the Lord Chancellor to consult the LCJ on appointments to, and dismissals from, the LSB. Some thought is being given to whether or not the Bill should specifically provide for the LCJ’s advice to be made public – to avoid any impression that he may have leaked it.
On Polluter Pays, an amendment has been tabled to provide for a charge to be waived or reduced, where the complaint is dismissed and the respondent took all reasonable steps to resolve the complaint initially through in-house procedures. We believe that a charge should be reduced, rather than waived, only where a dismissed complaint was not initially well-handled in-house.
On Complaints Handling, specific provision is now to be made for the OLC to seek complaints-handling assistance from front-line regulators such as the Bar Council, thereby preserving the expertise of the BSB and pro bono complaints handlers. Notably, our patient discussions with Which? and the NCC have brought the consumer organisations, and hence the Minister, on board.
We continue to press the case for thresholds of intervention by the LSB that are consistent with a light-touch regulator that only intervenes after first considering the impact of the proposed course of action on all the regulatory objectives taken together. Clause 3 of the Bill provides a further brake inasmuch as intervention must be proportionate and targeted only at cases where action is necessary.
The final relevant amendment seeks to ensure that the ABS Regulator pays special attention to the effect on access to justice when licensing such structures. This matters if the consequent risk of conflict between practitioners actually reduces consumer choice.
Costs remained a real cause for concern. From the position in December 2006, when the DCA were claiming the new system would produce savings for providers (through reduced subscriptions) and consumers (through reduced charges), the cost estimates had now been raised. Based on a 5% year on year increase in Law Society complaints, and a 15% improvement in systemic efficiency, the OLC and LSB set-up costs rise from £26.6m to £37.1m (including a £5m margin) and the OLC’s annual running rise from £16.8m to £19.9m. We believe the assumptions are unrealistic and the costs are understated, and we have repeatedly said as much to government. Set-up costs are planned to be clawed back from the professions from 2010 to 2013; of the £37.1m, nearly £20m will be raised by a levy. Given that complaints against solicitors constitute 96% of the total, and that the OLC will have access to the ‘free’ BSB, we will argue for the lowest possible share of the levy. However, there is sure to be a substantial call on the profession from 2010 onwards.
Finally, we will need to contribute substantively to the drafting of the LSB Regulations: the so-called ‘internal governance rules’. These will be crucial to our objective of keeping regulatory creep to an absolute minimum, and to give effect to the legislative recognition that the Bar Council is the approved regulator. The rules will also need to ensure that the Bar Council’s regulatory functions are not prejudiced by its representative functions. A small working group will take this forward.
In the context of future complaints handling, Sir Ivan Lawrence QC raised a concern over the tendency of judges to prevent solicitors sitting in court with counsel. This had clear implications for dissatisfied clients, and the outcome of complaints where no solicitor was present to support counsel’s view. The Chairman agreed that the Bar Council should hold to the line that solicitors were needed in court.
8. BUDGET
The Treasurer introduced the item by reminding Members that their agenda included the 100-page Budget for 2008, and that he had produced a 2-page table item to assist the explanatory process. He was generous in his praise for Brian Buck, the Chief Accountant, who had born the brunt of the task and who was also present at Bar Council to assist if required. The Treasurer suggested at the outset that the 2008 budget should be measured against the four principles he had adopted:
a. Tell Members the facts
b. Try and forestall problems
c. Work for consensus, and
d. Give value for money
The facts. The Treasurer proposed that the overall level of practising fee increase should be 8%. How that increase would be distributed between different payment bands would be decided by the Finance Committee and GMC in the next month, and reported back to the next Bar Council meeting.
Forestalling problems. The largest problem is the Bar Council staff pension scheme. Members were aware that the Finance Committee had established an expert working group to address the affordability of the scheme that had been in place since 1974, notwithstanding that changes to improve affordability had already been made in 2004 and 2006. The Bar Council has always kept the scheme fully funded to the maximum amount advised by its actuary, but this was insufficient to make up for the long saga of accounting and actuarial misjudgements that had taken place in the UK and elsewhere in recent decades. The actuary has advised us that the scheme is in serious deficit, and we have planned accordingly to put in additional cash at a manageable level. The key is to stay on top of the problem.
The recommendations of the working group will be taken forward to put the scheme back on an even keel for the future.
Consensus. The nature of Bar Council activity could not be likened to that of a traditional business, and the Treasurer of the Bar Council had a markedly different range of stakeholders to, say, the Finance Director at Tesco. The requirement to fully fund the reasonable regulatory needs of the BSB was for its public interest function, and these demands sat alongside the representative needs of the profession. The needs of the Bar Council staff straddled both functions. Subject of course to the need to sustain the Bar Council’s key outputs, there was much to be gained by seeking a consensual approach to the present pension difficulties.
Value for Money. The 2008 Budget was a pragmatic compromise between an inevitable array of competing demands. The new model of regulation, as evidenced by the BSB, was good value for money. Notably, members would observe from the full budget documents and from the table item that the BSB had worked hard to offset its additional costs by raising additional revenue. Elsewhere in the organisation, the relative successes of the Carter process, and the increasingly optimistic outlook for the Legal Services Bill (reported earlier in the meeting) suggested that practitioners were getting reasonable value for their investment in the Bar Council.
The Treasurer invited Members to approve the 2008 Budget.
Jeremy Barnett pointed out that the remuneration and morale of the single largest section of the Bar – the Criminal Bar – was at rock bottom. His Chambers had been forced to make some staff redundant, and he knew that other sets were considering the possibility. It was essential that the Bar Council realised the hardship experienced by some publicly-funded practitioners. Stephen Leslie QC spoke of the very considerable efforts being put in by Members and Bar Council staff to solve these financial problems, and Ken Craig described the extent to which the Finance Committee had worked assiduously to analyse the problems, and to match the solutions to the facts. Fenner Moeran addressed three elements of the pension scheme deficit, and its remedy. First, he distinguished between the problems of the past and future, inasmuch as today’s problem is the deficit between the assets and liabilities that have already been accrued. Solving this accrued problem was a prerequisite to keeping the scheme going for the future. Any future problems would depend more on our ability to solve today’s accrued problem than on paying for future assets and liabilities. Second, he drew attention to the two variables involved: the variable size of the deficit, depending on the assumptions used in Scheme Specific calculation; and the number of years taken to pay off the deficit. Third, he pointed out that the early retirement provision was a factor in considering the way forward.
In response, the Treasurer noted that staff redundancy at the Bar Council would not diminish at all the size of the accrued deficit. It would merely result in a poorer service to practitioners. Greater risk sharing between employer and employees might in future result in less generous net benefits for the staff, but this would be offset by a greater assurance that the pension scheme would survive to give staff those benefits. Greg Dickinson QC emphasised that the Bar Council’s work needed doing, for which it needed the appropriate staff.
Nick Lavender questioned whether the 20% increase in BSB expenditure was justified, and whether it was numerically consistent with the BSB’s bid. The Treasurer said that it had been a difficult balance to strike between the BSB’s bid and the overall Bar Council budget, and he emphasised that it remained important to avoid creating a separate income stream accounting line for the BSB. In the context of BSB income, John Howell QC raised the tricky issue of ensuring that BSB charges for the accreditation of CPD providers or courses took account of the different charging regimes adopted by those SBAs who delivered CPD to their members. Richard Salter QC believed that some SBAs might fund specialist activities; for example, perhaps the IRC should fund any charges incurred in practice development overseas. Greg Jones reminded Members that SBAs were not uniformly flush with money, and that the Bar Council should not be indiscriminate in its charging policy.
The Chairman was grateful for the huge amount of work put into the budget process, and felt the meeting was now better informed about the contemporary issues.
The Bar Council approved the 2008 Budget.
9. CRIMINAL FEES REPORT
The Vice-Chairman gave a brief resume of recent activity, including any relevant progress. He pointed out to Members that they should have seen most of the details in the ‘End of Summer Report’ letter to the troops, from the Chairman and Vice-Chairman, dated 13 September.
The LSC have broadly accepted our proposals on the selection policy for those 25-40 day cases going to contract. This should affect only six or seven cases a year, and will be confined either to terrorism cases, SFO prosecutions, or cases with any two of four specific criteria involving 10,000 pages of prosecution evidence; 10,000 pages of unused or third party material; more than five defendants; and fraud or drug cases with a value over £1m.
The LSC will work with us and the Law Society to develop our proposed VHCC scheme, based on whole case fees rather than hourly rates, and our objective will be to argue for the earliest possible introduction of our scheme.
The RAGFS seems to be working reasonably well, and many thanks are owed to Simon Garrod at the Bar Council for providing clear and quick advice. It is reassuring to know that young criminal practitioners are now seeing the tangible benefits of the Carter outcome.
We continue to press the Bar’s case for parity of prosecution and defence fees and, with evidence from the Circuit Leaders and the CBA, we are insisting that the CPS adhere to their agreed Statement of Principles as to the use of HCAs in the Crown Court. A further meeting with the A-G and DPP is imminent, with the aim of getting HCAs to adopt the same approach as the self-employed Bar to case ownership. The Chief Executive of the CPS had agreed to follow up examples of where this was not being carried out.
Our argument that Crown Court work should be excluded from the One Case One Fee, and the Best Value Tendering, processes is gaining ground. The timetable for OCOF introduction is anyway slipping, and the latest estimate is January 2009. The Bar Council’s OCOF Group will be concentrating on the LSC consultation paper on OCOF that is due to be considered in October.
In conclusion, Sir Ivan Lawrence QC expressed his gratitude for the efforts being made on behalf of practitioners, and he added his thanks for the greater focus on communicating with the profession.
10. KENNEDY IMPLEMENTATION
The Chairman initiated the debate on implementation of the Kennedy Report by suggesting the Bar Council should, at this stage, concentrate on three principal recommendations of the Report. First, that any future Vice-Chairman should receive a salary of half that of a High Court Judge; second, that there should be an increase on the Bar Council in the number of SBA representatives, offset by a reduction in the number of directly elected members in the Over 7 Years Call category; and third, that direct elections of Members to the Council should be elected by a First Past The Post (FPTP) method, rather than by the present Single Transferable Vote (STV) method.
The Chairman made some additional points to put the recommendations into context. The post of Vice-Chairman must be available, both in theory and in practice, to practitioners of all backgrounds and type of practice. The SBAs are becoming increasingly a key link between practitioners and the governance of the profession. Further work would be needed to refine any new method of direct elections, and the Bar Council would being asked at this stage only to invite the Kennedy Implementation Group – to be chaired by Nick Lavender - to propose a new method of voting.
John Cooper spoke in favour of opening up the position of Vice-Chairman to a new range of diverse and publicly-funded practitioners. David Wurtzel contrasted the nature of the profession’s various constituencies, ranging from the well-represented Inns of Court to the unrepresented Association of Women Barristers (AWB). Conversely, Jonathan Small QC characterised the AWB as an interest group, rather than an SBA, and was opposed to interest group representation. Michelle Harris, supported later by Matt Kelly QC and Tom Crowther, observed that only 39 of the 118 Bar Council Members were directly elected, and that the majority of Bar Council committees had fewer than 50% elected members. She took the view that we needed more, not fewer, directly elected members, and she proposed that all Bar Council Committees should have a simple majority of Bar Council Members. The Chairman sought to counter these latter points by noting that it was mandatory for SBA Members to be elected by their own knowledgeable constituencies, and thus they were in one sense more accountable that directly-elected Bar Council Members. The days of robing-room ignorance about the Bar Council had given way to a greater understanding amongst practitioners about the hard work expected of Members of the Council. There was a real danger that mandating additional Committee work for all Members would simply result in fewer high quality candidates for the Bar Council. Sir Paul Kennedy had also agreed that interest groups should not get Bar Council representation, with the sole exception of the Young Bar Committee, whose function was unique.
Frank Abbott was typically robust in his defence of the Bar Council’s perception of its own analysis, and he believed that the broader constituency had a poorer grasp of the issues. This could be improved by increasing the number of Circuit representatives, if necessary at the expense of SBA Members. The Vice-Chairman cited the increased frequency and quality of the Bar Council’s communications with practitioners, and suggested that the robing-rooms had every opportunity to understand the issues. Kris Venkatasami pointed to the obligation on Members to attend Bar Council, and explained that in his experience of being elected by 2,000 members to represent the CPS HCAs, his constant explanation of issues was never matched by the constituencies’ willingness to read anything. The relationship between SBAs and individual Members was explored by Catherine Addy and the Chairman, who concluded that Kennedy had recognised that SBAs could not be stopped from supporting particular candidates: one could only discourage Slates.
Catherine Addy recommended that the Chair of the YBC should be remunerated for the term of the office; typically, the Chair suffered a 35% drop in income for the year. Sophie Shotton and Fiona Jackson supported this line, and believed that this would attract the best candidates. Ken Craig argued that no fair comparison could be drawn between the work of the Bar Council’s Vice-Chairman and the BSB’s Vice-Chairman, and that the latter should not be paid. Andrew Mitchell QC was against the idea of creating more salaries for the BSB and, as a separate topic, proposed to study the possibility of income-related PCFs for the future. Sir Ivan Lawrence QC supported paying future Vice-Chairmen, and the Chairman was certain that the 2008 election for the 2009 post of Bar Council Vice-Chairman must attract the widest constituency.
Doubts were expressed about the need to change the voting system. Matt Kelly QC was astounded that a FPTP system should be considered, and Ken Craig believed that the STV method may still be the best answer. Richard Salter QC observed that it may be better to keep STV because the claimed mischief – that minorities were disadvantaged by the type of STV system used by the Bar Council – could be remedied by different means. He raised the additional point that changing the voting system could compound the overlap between SBA and directly-elected Bar Council Members. The Chairman believed that the overlap point had been considered, but it was clear anyway that more detail and explanation was required on the reasons for changing the voting system. Nonetheless, it was his objective to implement those Kennedy recommendations that could be agreed, rather than redo Kennedy’s work. Richard Salter QC was grateful for the Chairman’s agreement to reconsider and develop aspects of the proposal to change the voting system.
Nick Lavender adopted a broad construction of the term ‘Implementation’. There were a number of issues to be worked through, including some that had not already been raised. For example, he wondered whether it should be right for some Bar Council Members to have, in theory at least, more than one vote. The concept of the Slate, and its democratic credentials, should be clarified. Whether or not there should be additional directly-elected Members on Bar Council Committees also needed examination.
At the Chairman’s invitation, the Bar Council approved the principle of paying the Vice-Chairman of the Bar. A number of unresolved Kennedy-related issues would be brought back to a future Bar Council meeting for a further debate.
11. COURT DRESS CONSULTATION
The consultation survey on the Lord Chief Justice’s announcement on court dress had received, so far, some 2,100 responses. Members were asked to encourage all practitioners to take advantage of the survey. It would be important for the leadership of the Bar Council to have an accurate impression of practitioners’ views.
12. GOVERNANCE OF BRITAIN
The Bar Council had set up three working groups to contribute to different aspects of the debate about the Governance of Britain. Prompted by the Government’s recent Green Paper, the working groups on the Constitution; Lord Goldsmith QC’s study into Citizenship; and the Role of the Attorney General, would be chaired, respectively, by Michael Beloff QC, Tricia Howse and Professor Ross Cranston QC. The Chairman was confident that this work would be useful to government.
13. ANY OTHER BUSINESS
The Chairman drew attention to the position being taken by the Bar Council towards the widespread violation of human rights apparent in Burma. This would be a prominent theme at forthcoming events to mark the Opening of the Legal Year.
Catherine Addy reminded Members that the 2007 Bar Conference on 3 November at the Royal Lancaster Hotel would have more sponsors than ever before; that all of the speakers were contributing for free; and that the entry fee in every category had been lowered still further this year.
In the context of the contribution made by Members of the Bar Council, and their attendance at Bar Council meetings, Andrew Walker reminded the meeting that the Bar Council had reaffirmed the ‘three strikes, and you are out’ attendance rule.
14. DATE OF NEXT MEETING
The next meeting will be held on Saturday 17 November 2007 at 1000 hrs in the Large Pension Room, Gray’s Inn.
