Bar Council Minutes 14 June 2008
Minutes of the Bar Council Meeting
held on Saturday 14 June 2008
In the Spy Room, Gray's Inn
Present:
Baroness Scotland QC - Attorney General
Tim Dutton QC - Chairman
Desmond Browne QC - Vice-Chairman
Andrew Mitchell QC - Treasurer
David Hobart - Chief Executive
1. Apologies
Apologies for absence were received from Simon Bourne-Arton QC, Nicholas Lavender QC, Richard Marks QC (represented by Tony Cross QC), Lucy Theis QC, Robin Tolson QC, Mirza Ahmad, Richard Atkins, Stephen Bacon, Jeremy Barnett, Tim Devlin, John Elvidge, Helen Fletcher Rogers, Joanne Hacking, Rex Howling, Fiona Jackson, Taryn Lee, Eleanor Mawrey, Christina Michalos (represented by Penny Hamilton), Christiane Valansot, Kris Venkatasami.
2. Approval of the Minutes
The minutes of the 15 March 2008 Bar Council meeting were approved, subject to the following amendments. Under Item 1, Charles Hale should be added to the list of those who had tendered their apologies. Under Item 8, which dealt with proposals to amend Standing Orders, an additional sentence should be added in the penultimate paragraph at the end of the comments attributed to Ken Craig: ‘The aim should be to appoint the best person for the post, but it was for the Appointments Panel to consider, having viewed the appraisal, whether the likelihood that a competition might result in a “better” candidate coming forward was such that a competition should be commenced.’
3. Matters Arising
No matters arose.
4. Statement by the Chairman
The Chairman proposed to deliver an abbreviated Statement to the meeting, to avoid unnecessary duplication with what he intended to say at the Annual General Meeting.
The problems of public funding, which were so important to 40% of the profession, continued to dominate the Chairman’s agenda. He had met again with the Lord Chancellor, and twice more with the Legal Aid Minister, since the last Bar Council meeting. Intense activity was underway on CPS fees; a consultation on the Family GFS; production by 8 July of a skeleton VHCC scheme; and dialogue with the LSC on Best Value Tendering. The LSC and MoJ were aware of our view that BVT would drive quality and choice out of the system for those most in need of it.
The LSC had briefed the press on public funding, leading to a Times article reporting that lawyers doing family work earned an average of £140k. The LSC claimed, with reason, that this resulted from a misunderstanding. An apology to the Chairman, and a correction sent to the Times, set the picture straight. For the future it was important that dialogue with the LSC and Ministers was open and informed. There had been a lively debate at the meeting in May of the All Party Parliamentary Group, chaired by Lord Brennan QC, which coincided with our launch of the discussion paper ‘Legal Aid and the Public Interest’. The Chairman would pull together the responses to this, and publish our ideas before the summer break. We should seek to persuade open-minded ministers about the best way of achieving sensible working legal aid schemes that removed perverse incentives and inflation, and retained quality. We must avoid the path to a two-tier legal system.
We had three groups working with the Judicial Appointments Commission: a liaison group comprising the Chairman and Margaret Bowron QC; a Diversity Forum on which Ingrid Simler QC and Rabinder Singh QC represented the Bar; and a research group that included our Equality and Diversity Advisors. Meetings with the Chair and members of the Judicial Appointments Commission had addressed problems with the recorder competitions in the North and North-East, with an eye to heading off problems with the forthcoming competitions in the Midlands and then the South East. The Chairman was confident that steps would be taken to improve the exam process. Additional representations were made about the Circuit judge competition, and the unwelcome practice of individuals sitting exams in groups of up to 25. The Chairman had given evidence on judicial appointments to the Parliamentary Joint Committee on the Constitutional Renewal Bill, arguing for regular and efficient processes that prompted applications from the most talented. Our Circuit Mentoring scheme was now up and running, with trained mentors as a point of contact for Circuit members. Active encouragement was need for those interested in judicial office.
Support for the Bar as a diverse profession would come from a Bar Nursery scheme. Inadequate childcare arrangements did nothing to retain women in the profession, and perpetuated the glass ceiling for women. A nursery scheme had worked well from the very beginning at the FCO, with ministerial support from Baroness Scotland. A recent roundtable discussion had been organised by the EDAs, at which a broad range of some 40 people worked to develop an action plan to attract and retain equality at the Bar. More focus was required on ensuring a fairer distribution of work in some areas of the Bar.
The Chairman enthused about the recent opening of our new office in Brussels, which we shared with some other European liberal professions. For virtually the same cost as our previous premises we now had excellent conference and office facilities available for barristers to use, less than two hours from London. The Chairman’s recent travels had taken him 10 kilometres around London, on foot, to support the London Legal Walk charities; 100 kilometres to East Anglia, by train, on a Circuit visit; and 1000 kilometres to Oslo, by air, for a seminar and participation in the Norwegian Bar Centenary. Back in the UK, the Chairman had a useful working lunch with Nick Herbert MP, the Shadow Lord Chancellor. The Chairman had written to Dominic Grieve QC MP to congratulate him on his appointment as Shadow Home Secretary.
The Bar Council had received 93 responses to its own response to the BSB’s consultation paper on Alternative Business Structures. From these, the Chairman had concluded that a significant minority of barristers, perhaps a quarter, would prefer to see the abolition of the Rule 205 prohibition of partnerships, with the remaining majority preferring the status quo, or a modest relaxation of Rule 205.
The Law Reform Committee had joined forces with the Criminal Bar Association in responding to the Conservative Party consultation paper on Bail. Each viewed that the Bail Act properly protects the public interest and, notwithstanding the tragedy of the Wedell case, encroachment upon bail would be inappropriate. These points had been made firmly to the Conservative Party. We had given evidence on the Counter Terrorism Bill, and had provided evidence to Government on the Sentencing Commission idea that came from Lord Carter’s review of prisons. A strong view had emerged that a Sentencing Commission would be unwarranted. Mark Ellison QC was our appointee on the working group led by Lord Justice Gage. Finally, work on the development of regional Administrative Courts is underway, that will need the support of matching regional training projects.
The Chairman ended his Statement by paying tribute to all those who worked hard for the profession in the Bar Council. The work of the Fees team and Professor Martin Chalkley sprang to mind, as did the increasingly central role of the Equality and Diversity Advisers. The Chairman noted that staff on the 7th floor were working to match the demands of ever longer days for the Officers of the Bar Council.
5. Bar Council MMembers 2008
The meeting noted the list of Bar Council members. The latest membership list of the Bar Council is attached at Annex A.
6. Establishment of Bar Nursery
The Chairman introduced the item by reminding the meeting that the number of women in Silk and the judiciary was disproportionately low, and that more steps were needed to alleviate the professional impact of family commitments. Childcare was a crucial family commitment, and could be eased by the establishment of a Bar nursery. Central London would be the best compromise location for a collegiate profession with the varied and demanding working practices of the Bar. The objective of the presentation to the Bar Council was to gain support in principle for the proposal. This would follow the unanimous support received by the GMC.
Jess Connors believed that the nature of the problem was well known, but she emphasised that the scope extended to cover barristers, clerks and other staff. In seeking to confirm that evidence existed for the demand, she had asked people directly whether they would bring children to a nursery facility: 207 had said that they would use such a facility. Supportive feedback had been received from clerks, and from the self-employed Bar and employed Bar. She explained the costed proposals (which were included in the Bar Council agenda), and stressed that the modelling had covered low, medium and high occupancy rates, with opening hours from 7am to 7pm. The likely capital investment would be up to £205k, with the total costs approaching £320k. Fees for the facility would be competitive. She concluded her presentation with a request for support from the Bar Council.
The Attorney General recalled the difficulties she had faced in introducing an equivalent nursery facility at the FCO. After a series of initial objections, the facility had proved a great success, with high utility from the outset. The advantages went beyond mere childcare, as the nursery played a significant role in humanising the host organisation. She believed that a nursery would be an excellent facility for the Bar. Jasif Alil was sure that everyone’s initial reaction was to agree the need for a nursery. However, he had concerns at two levels: a principled concern that the proposal was London-centric, and thus to the relative disadvantage of practitioners outside London; and some practical concerns, including the likely take-up of the facility by practitioners for whom Central London was not an ideal location, the affordability of the facility for junior practitioners, and doubts over the rent levels used in constructing the financial case. The Chairman noted that one had to start somewhere when initiating such a project. Kate Grange pointed to the active support expressed by the wider Criminal Bar, not merely those practising in London. She was adamant that their research showed that people would use the facility. Stephen Collier commented that the issue for the Bar Council was not one of ‘how’ but one of ‘whether’ to provide the facility. He believed it was a necessity, and not merely a convenience. Winston Roddick QC offered his congratulations to Jess Connors and Kate Grange, and was fulsome in his support. He predicted that the regional Circuits would wish to emulate this welcome initiative. Tom Crowther recommended that the project team should look for regional support to strengthen further the case. The Chairman sought the collective view of the Bar Council, and confirmed that the proposal had overwhelming support.
7. Amendments to the Bar Council Standing Orders
The Chairman took the meeting through the issues, and noted that the Bar Council had debated the substance on a number of previous occasions. The purpose of the decision faced by the Bar Council was to formalise the processes to be adopted by the Appointments Panel in their appointment of the Chair of the BSB.
Andrew Walker had a number of concerns, some of which he had raised before. First, that Rule 8 of Section A of Schedule One to SOs provided too broad a power to the BSB. Second, that Rule 2(6) should be changed from ‘ …. shall be asked to attend any meeting of the Panel’ to ‘ ….shall be asked and permitted to attend any meeting of the Panel’. Third, that Rule 20(2) should be changed from ‘include persons of varying age and experience…’ to ‘include persons of varying experience ….’. Fourth, that the redrafting had led to the deletion of some factors, including several aspects of appointment to the Complaints Committee; the former Rule 18f that related to Nolan compliance; and the important former Rule 18g that empowered the Bar Council to remove by extraordinary resolution a BSB member. Tom Little argued that the use in Rule 25(1) of the term ‘…to the standard to be expected …’ could be construed as a lower standard than the earlier formulation of ‘….to a satisfactory standard ….’. The Chairman reminded the meeting that the Bar Council had previously agreed that ‘satisfactory’ was an insufficiently demanding standard for such an important post as the Chair of the BSB, and that the new text would be construed to require a higher standard than ‘satisfactory’.
The Chairman was at pains to distinguish between, on the one hand, substantive and drafting points that had no likely relevance to the forthcoming work of the Appointments Panel and, on the other, any issues of immediate concern to the Appointments Panel. He agreed with Andrew Walker that changes to a number of these points, for example those dealing with the Complaints Committee, would have to come back for approval at a future Bar Council meeting. But, for the time being, the proposed changes to SOs were sufficient to permit the Appointments Panel to do its work.
The Bar Council approved the changes to Standing Orders.
8. BSB Appointments Procedure
The Chairman outlined the timescale and procedures involved in appointing Members, the Vice-Chair, and the Chair of the BSB, and he undertook to report on progress to a future Bar Council meeting.
9. BSB Annual Report
The Chair of the BSB, Ruth Evans, presented a near-final draft of the BSB Annual Report, and expected the final version to be published later in the month. This was the third Annual Report she had had the opportunity to present, and she was keen to demonstrate that working in partnership with the profession included being accountable to the profession for the work that was done, and the manner in which it was done. She would be supported in her presentation by the Chairs of the Standards, and Education and Training, Committees.
The Chair expressed a number of thanks to past and present Chairmen and Treasurers for their contribution to solving the inevitable problems that arose in the course of the development of the BSB. She thanked also Mark Stobbs, the previous Director of the BSB, for his outstanding contribution, and she welcomed the new Director, Mandie Lavin, who would be joining on 23 June. Finally she thanked the interim Director, Julie Myers, for her work, and the Vice-Chair of the BSB, George Leggatt QC, for the leadership and support he had given.
In 2006 the Chair had said the BSB would review the training regulations, review the Code of Conduct, and review the complaints system. The work was either underway, or had been completed. In 2007 the Chair had said the BSB would review the BVC, and would engage with Government on the legislation for, and the impact of, Alternative Business Structures. Joint working with the Bar Council had paid dividends with the successful passage of the Legal Services Act, and a similarly joint approach was being adopted for the ABS work.
The Chair had been pleased to hear Tim Dutton QC describe the Bar as “well regulated, and much more economically than its competitors”. This chimed well with the BSB’s commitment to economic and efficient working. The BSB was acutely aware of the financial pressures faced particularly by the publicly-funded Bar, and had managed to reduce its call on the money raised from practising certificate fees. The BSB’s Performance and Best Value committee had added a necessary rigour and discipline to the business planning process.
With the passage of the Legal Services Act, the establishment of the Legal Services Board and the Office for Legal Complaints was imminent. The recent appointment of David Edmonds as the first Chair of the LSB would bring in a new phase, in which there would be a need to demonstrate commitment to both the spirit and the letter of the BSB’s independence from the Bar Council in regulatory decision-making. Throughout these changes, the BSB would use its excellent committee structure to promote the highest standards of legal education and professional practice.
The Chair highlighted some headlines of the Annual Report before handing over to her two Committee Chairs. First, the BSB continued to operate an efficient complaints system, for which both the outgoing Chairman of the Complaints Committee, Richard Price QC, and the new Chair, Sue Carr QC, deserved full credit. This work had been praised in the Annual Report of the Complaints Commissioner, which was annexed to the Annual Report. Second, a pilot scheme had been developed to monitor chambers compliance with the Code of Conduct. This would result in follow up visits to chambers that needed assistance, and should help the dissemination of best practice. Third, the BSB had developed, and was promoting, its Equality and Diversity Action Plan. Finally, the Chair drew attention to the BSB’s first research project on ‘Perceptions of Barristers’. The work illustrated both the strengths and weaknesses of the profession, and supported the need to continue to monitor the quality of barristers’ services.
The Chair closed by thanking Bar Council members who had taken the time to meet the Board members out on Circuit visits. Such dialogue and feedback was critically important to inform the BSB’s accountability to the profession.
Charles Hollander QC, the Chair of the Standards Committee, described the scope of his committee’s activities. The leading activity was the review of the Code of Conduct and how to deal with Alternative Business Structures. A major consultation exercise, accompanied by five seminars in London and elsewhere, was intended to stimulate discussion and raise awareness of the issues. The latter feature was important, given the generally poor level of knowledge in the profession about the implications of the Legal Services Act. The need for a coherent relationship between the development of the Code of Conduct, and the developments in Alternative Business Structures, will be crucial for the profession.
Additional work of the Standards Committee included a completed study of the policy of entertaining solicitors; work was underway on a review of public access rules; and work on the acceptance of instructions, including the longstanding problems of reaching agreed contractual terms with solicitors. He concluded by mentioning the prevalent problem of ‘consultation overload’: but it was essential for an evidenced-based regulator to get high quality feedback, and it was in the professions’ interests to continue to provide the best possible responses to consultations.
Dr John Carrier, the Chair of the Education and Training Committee, expressed his thanks and admiration for the many pro bono advocacy courses, and Inns and SBA events that he had attended in the past year. He had been particularly well supported by Valerie Shrimplin, the BSB’s Head of Education and Training, in making a contribution to the Neuberger, Wilson, and Wood studies. The one common feature was the debate about the BVC, and he listed the familiar factors that would determine the eventual outcome of the current BVC Review debate: the course numbers, the number of pupillages, the duration and cost, the social debate, the 2:1 versus 2:2 debate, the role of an aptitude test, the course content and standards, the language requirement, and the thorny topic of a national exam. He was grateful for the cooperation he had received from the profession on these issues, and looked forward to a successful BVC outcome. For the future, there would be additional Reviews of CPD activity, and pupillage.
The Chairman thanked Ruth Evans, Charles Hollander QC and Dr John Carrier for their comprehensive report, and looked forward to the BSB’s continued success.
10. Public Funding
The Chairman had covered much of the ground on public funding in his Statement. He was supported in his account of the various negotiations by Lucy Theis QC for family law matters, and Michael Bowes QC for progress on the outline VHCC scheme. The Chairman emphasised again the importance of working constructively and promptly with the solicitors, the LSC, and Martin Chalkley in achieving a useful VHCC product by 8 July.
11. Alternative Business Structures
The Chairman had received some 90 responses to his letter to practitioners inviting their views on the Bar Council’s response to the BSB’s consultation paper on Alternative Business Structures. He had mentioned the highlights of this in his earlier Statement. He added the one significant statistic that 85.7% of the responses were in favour of keeping the Cab Rank rule.
12. Bar Council Constitution – Changes Since June 2007
Members recalled the work of the Kennedy Review Group and the Kennedy Implementation Group, and were reminded of the consequent changes they had agreed to the Bar Council Constitution. It was a requirement of the Constitution that changes approved by the Bar were brought to the attention of the next Annual General Meeting. This would be done later in the day.
13. Any Other Business
There was no other business.
14. Date of Next Meeting
The next meeting will be held on Saturday 12 July 2008 at 1000hrs in the Spy Room, Gray’s Inn.
