Bar Council Meeting 25 November 2006
Minutes of the Bar Council Meeting
Held at 1000 on Saturday 25 NOVEMBER 2006
in the Large Pension Room, Gray’s Inn
Present:
Stephen Hockman QC - Chairman
Geoffrey Vos QC - Vice-Chairman
David Southern - Treasurer
David Hobart - Chief Executive
1. Apologies
Apologies for absence were received from: Attorney General, David Aubrey QC, Nicholas Green QC, Duncan Matthews QC, Philip Mott QC, Michael Redfern QC, Frank Abbott, Mirza Ahmad, Zubair Ahmad, Gaynor Houghton Jones, William Partridge, Tim Newman, Samuel Townend and Mark Wilson.
2. Approval of the Minutes
The minutes of the 30 September Bar Council meeting were approved, subject to the belated recognition of Jonathan Brock QC as the Father of the House. Further bids for this prestigious post will not be considered before 2007.
3. Matters Arising
No matters arose.
4. Statement by the Chairman
The Chairman noted that the issues of interest and concern to him were covered by discrete agenda items, and hence that he had no wish to duplicate upcoming debate. He reminded the meeting of the struggles faced elsewhere by the legal profession, by reference to a short visit he had made to the Zimbabwe Bar summer school, and he concluded his Statement by extolling the virtues of brevity in public speaking.
5. Bar Council Members 2006
The meeting noted the latest list of Bar Council members.
6. Carter
Geoffrey Vos QC gave a short resume of where we stood in the Carter process. The government’s wide consultation had prompted some 2200 responses, to which the DCA was busily coordinating a response. In the meantime the Bar was seeking to make progress on the obstacles to a successful implementation on 1 April 2007, by addressing: a quality regime without a disproportionate overhead; a workable protocol for fee sharing, that reconciled Vat and Revenue constraints; a stakeholder panel for problem solving, to start work in January 2007; and further dialogue with the DCA on family law fees. The DCA response to Carter consultation was imminent, and would be considered at the January 2007 Bar Council meeting.
7. Legal Services Bill
In the wake of the First Reading in the Lords of the Legal Services Bill on 23 November, Desmond Browne QC bemoaned the limited changes made to the Bill following the Joint Parliamentary Pre-Legislative Scrutiny Committee recommendations made in July. Government had rejected the concerns expressed about complaints handling; the high set-up and recurring costs of the OLC; the level of the Secretary of State’s involvement in regulation; and the troubling reforms to business structure that went well beyond those proposed by Clementi. We would consider proposing a number of amendments to the Bill, and in this regard we were indebted to the work of Michael Blair QC and Gordon Nardell. Our focus now would be on complaints handling, and costs.
The principle of a single public point of entry for complaints was not objectionable. Of concern though was the prospect that our service complaints, and our hybrid complaints – i.e., joint service/conduct – would be dealt with by a re-branded, and largely discredited, solicitors’ complaints system. Only recently had the Legal Services Complaints Commissioner criticised the Law Society for a sub-standard response to complaints about earlier failings in their complaints system. The Bar was being dragged down by the failings of the Law Society, and it was time to make Parliament realise that the Bar had an independent proven record in complaints handling. A similar proven record had been demonstrated by the Northern Ireland Bar in arguing successfully that, for them, the Clementi proposals were unnecessary.
The DCA’s arguments on costs had been consistently pathetic, and based on blind repetition of Clementi’s original optimistic assertions. The probability of a near doubling of the cost estimate for a poorer public service was met merely with the government’s acknowledgement of ‘some uncertainty about the costs’. Although a rise in cost per complaint from £640 to £1100 was likely, it was too soon to be disheartened. Our arguments were sound, and had persuaded the Joint Committee. We had plans in place to persuade Parliament in the Second Reading in the Lord on 6 December, and particularly at the Committee Stage in the New Year.
8. Regulation of the Legal Profession
It was explained that the rationale for the consultation paper 'Who should fall within the Bar's regulatory arrangements?' was contained in the draft letter to the profession. If the new regulatory regime was to be placed on a statutory footing, and if we were to secure our footing for the future, then it was essential to re-examine how we organised ourselves. In particular we needed to affirm those principles on which the regulatory regime is based, including the expectation that the Bar delivers high quality advocacy and specialist legal advice. The Chairman asked for comments on the content, and approval for the fact of consultation, and he reminded the meeting of the substantive role of the BSB in taking a view on, and eventually implementing, any new regulatory regime.
Sir Ivan Lawrence QC questioned the asserted link between a separate regulatory regime for the Bar, and the end of the debate about fusion between barristers and solicitors. The fact of no new money coming to the profession from the Carter Review, together with the trend towards the CPS monopolising in-house prosecution by massive recruiting, suggested that the reference to the end of fusion should be dropped. This line was supported by Ian West, who added the view that partnership would inevitably change the role and identity of the barrister. The laudable aim to secure the future of the Bar would come under threat from the date of the government's intention to introduce competition between barristers and solicitors. If there was to be a line in the sand, it would be the imposition of one case, one fee. To become a litigator's disbursement would be the end of the Bar. Considerable support was evident for Andy Hall QC's view that the Bar was not merely a ring-fenced payment, but more a band of specialist advocates and advisers. Gerard McDermott QC was clearly prepared to man the barricades in the cause of specialist advocacy. A middle line was steeered by Geoffrey Vos QC who emphasised the distinctive ethical values of the Bar, as well as the focus on advocacy. Payment procedures were important for their potential to disincentivise practitioners. But the Bar was not in decline: it continued to grow, and it was important now to identify the rules we should change to enhance the Bar.
The threat of one case, one fee, was real opined Simon Bourne-Arton QC, but the outcome of the Carter Review could be helpful in continuing to distinguish between baristers and solicitors. The key to future success was to specialise, according to Jeremy Barnett, a point that had been made forcibly in the press recently by Richard Susskind. The question posed to the meeting was whether or not to have the debate, and Stephen Bacon was sure the debate was necessary. Fiona Jackson was concerned by the duration of the consultation, and Charles Purle QC called for the early involvement of the BSB, simply to head off the possibility that the BSB might start all over again and waste a year or more. Geoffrey Vos QC argued that the purpose of the consultation was to encourage an open debate, and thereby to seek the profession's views before we engaged with the BSB. The example of Robert Seabrook QC as someone proactive in seeking views was cited approvingly by Stephen Leslie QC. John Howell QC was clear that the issue needed serious study before we determined our course of action, and hence that the title of the consultation might be amended to avoid prejudicing the outcome. Catherine Addy's busy Christmas diary led to a plea for a New Year start to the consultation.
The Chairman expressed optimism at this lively debate, and concluded with the widespread agreement that this was a vitally important issue.
9. BSB Training Regulations
Having reminded the Bar Council that the new consultation on the draft Training Regulations resulted from feedback provided to the BSB after the last consultation on the Training Regulations, the Chairman invited substantive comments on the new draft. Comments centred largely on the relative powers of the Bar Council and the BSB. It was felt by Michael Sherry that the para 99 power of the BSB to set fees was too broad, and that further dicussion was needed. Similarly, the para 97 requirement for the BSB to consult before using their para 96 power to amend Regulations was felt by some practitioners to be insufficient. Richard Salter QC expressed the concern felt in chambers that the BSB had the right to change training regulations, with no power of veto by the Bar Council or Inns of Court. Although the Chairman observed that the Bar Council empowered the BSB by delegation, Richard Salter QC believed that the BSB should require Bar Council consent for change. Such a requirement would be inconsistent with the BSB's necessary independence, stated the Chairman. Chantal-Aimee Doerries spoke of the widespread ignorance of practitioners about the BSB, and about regulation generally, and the Cairman agreed that further explanation was needed as the BSB became more prominent. With unusual prescience, that well known insomniac Peter Joyce QC likened the effect of training regulations to that of listening to overnight England cricket scores.
10. Standing Orders – BSB Proposals
The Chairman updated the meeting on BSB proposals to form an Education and Training Committee that would include representation from the Inns of Court. The GMC had expressed concerns with the BSB's belief that the chairmanship of BSB committees should rest with those 'most suitable' for the task, rather than being reserved for barristers. Further debate with the BSB was necessary.
Jonathan Brock QC spoke of a fierce debate in GMC, with all constituencies engaged. The need for a new committee was questioned by David Melville QC, but was explained by the Chairman as reflecting a need for certain skills, and for clarity of purpose. Geoffrey Vos QC spoke of the new committee, and the topic of chairmanship generally, in the context both of the BSB getting its feet under the table, and the backdrop of the passage of the Legal Services Bill. The government was a keen spectator of the evolving BSB/Bar Council relationship. It was felt by Greg Dickinson QC that a debate was needed about this relationship, and he raised a related concern that the cab rank rule was placed at risk by changes proposed in a Rules Committee consultation paper. Both parties needed to understand better the relationship. In expressing concern about the BSB, Gerard McDermott QC hoped the Legal Services Bill would limit the BSB's inroad to our Representative activity.
Geoffrey Vos QC confirmed that the Bar Council would be kept abreast of the continuing debate with the BSB.
11. Practising Certificate Fees, and Voluntary Subscriptions, for 2007
The Treasurer introduced the lefor junior practitioners had been frozen for a further year. Michael Sherry queried the size of the fee rise, in the context of the 2007 budgetary position wherein we had limited reserves, substantial pension liabilities tter that had been sent to subscribers explaining the size and shape of practising certificate fees for 2007, and he reminded the meeting that fees and large BSB costs. The Chairman acknowledged the risk of BSB costs, but the Treasurer spoke of the balanced 2007 budget, and an encouraging position on the pension review. As for the BSB costs, the Treasurer prayed in aid William Gladstone's observation on the 1861 Ionian Islands' question that 'any fool can write a constitution'. An invisible question mark hung over the meeting.
Sir Ivan Lawrence QC wondered whether as many CBA members paid the voluntary subscription as, proportionately, did other SBAs' members, but no comparison was immediately available. Ian West thanked the Treasurer for his considerable efforts in keeping the fee increase to a sensible minimum.
12. Practice Management Guidelines
The Council was reminded by David Etherington QC that the Professional Practice Committee now encompassed, from a Representative perspective, the issues dealt with by the Regulatory Conduct, Rules and Monitoring Committees. Accordingly, for example, Representative ethical queries were now dealt with by the PPC rather than the Conduct Committee. A number of changes to Practice Management Guidelines were inevitable since their publication in 2002, including the Data protocol, the Section 8 Equal Opportunity advice, and the Section 9 advice on socially responsible working practices. He invited Council's approval of the guidelines, and for agreement to disseminate them to the profession.
The new guidelines - and particularly the Section 9 advice - attracted mixed reviews. Ken Craig thought the Section 9 advice was inappropriate, and that Chambers did not need guidance on using china mugs rather than disposable cups, or advice on corporate social responsibility. Advice should not go beyond the legal position. Chantal-Aimee Doerries found the advice too prescriptive, and would welcome an alternative emphasis on the merits of pro bono activity. Sir Ivan Lawrence found the advice examples to be risible, and Eleanor Mawrey criticised the surfeit of detail. Karen Squibb-Williams felt that the size of the advice - 231 pages - ran counter to the purpose. Greater marketing of somthing much smaller was needed, and Theo Huckle asked for electronic distribution.
Conversely, the Chairman and David Etherington QC believed that the public interest would be served by at least some advice on best practice in this area, although too much detail may be undignified. Peter Collier QC and Zachary Bredemear supported the need for such advice, and Catherine Addy felt the emphasis should switch to encouragement, from mere statement, of standards. Michael Sherry suggested a title change to ease communcation, and Charles Hale pointed out the potential advantages of a good communications exercise. The Chairman invited comments by the end of the year.
13. any other Business
The Chairman updated the meeting on the topic of court dress, and mentioned that some judicial dress changes were in the offing. The Chairman had reminded the judiciary of the Bar's views, and believed that consultation would precede any likely changes.
The indisputable Father of the House gave appreciative thanks for the huge amount of time and effort expended by Stephen Hockman QC during his year as Chairman of the Bar and, on behalf of the Bar Council, Geoffrey Vos QC presented the Chairman with something appropriate to his time in office.
14. date of next Meeting
The next meeting will be the Inaugural Meeting of the 2007 Bar Council at 1730 hrs on Monday 11 December 2006 in the Parliament Chamber, Inner Temple.
