Bar Council Meeting 27 January 2007
Minutes of the Bar Council Meeting
Held on Saturday 27 JANUARY 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: Attorney-General, David Aubrey QC, Peter Collier QC, Tim Lamb QC, Anthony Kirk QC, Duncan Matthews QC, Angus Moon QC, Stephen Worthington QC, Tom Crowther, Tom Little, Eleanor Mawrey, Michele Parnell, William Partridge, Michael Sherry, Karen Squibb-Williams and Kris Venkatasami.
2. Approval of the Minutes
The minutes of the 13 December 2006 meeting of the Inaugural 2007 Bar Council were approved.
3. Matters Arising
No matters arose.
4. Statement by the Chairman
The Chairman suggested that debate would be encouraged at Bar Council meetings in 2007, and that the meetings would be kept relatively short. He focused on 5 topical and important areas of interest.
First, there was a continuing need for the Bar Council to improve its relationship with other bodies. Considerable progress had been made in 2006 with the Inns of Court, and it was crucial to keep this going. Internal disputes within the profession needed rapid and consensual resolution to avoid becoming damaging external issues.
Second, the need to improve opportunities for talented youngsters to come to the Bar remained at the top of the Chairman’s long-term agenda. The meeting was updated on progress to identify suitable talent, using the skills of the Social Mobility Foundation and the Sutton Trust. It seemed likely that the clearing banks could provide additional financial support to talented aspiring barristers, by means of attractive loan conditions that were complementary to the Inns’ existing selection and scholarship arrangements.
Third, the Bar Council’s relations with the Bar Standards Board had continued to improve, as evidenced by a recent successful and forward-looking meeting between the Chair of the BSB and the Chairs of the SBAs. Again, this good working relationship needed to be sustained, in the context of cooperatively influencing the passage of the Legal Services Bill.
Fourth, a number of tensions and doubts had surfaced in the Criminal Bar in the wake of the Carter outcome. In part, this resulted from the uncertainties felt by solicitors in the difficult transition from hourly rates to a GFS, at a time of likely contraction in the number of firms offering publicly-funded litigation. It was important for the Bar to maintain its confidence, and to take encouragement from its relative quality advantage over any competition. The need to implement RAGFS in April 2007 acted as a vital backdrop to the timing and tone of any criticisms we might make about the flawed VHCC consultation paper, and about the impact of the costs of terrorist trials on the VHCC and RAGFS budgets.
Finally, the Chairman put in a plea for feedback on the ‘Whom should the Bar Regulate?’ consultation paper. He speculated that the apparent protection to the Bar, provided by the anti-partnership rules in the Code of Conduct, may not be so necessary in the context of those future alternative business structures that may develop in the market place.
Ian West pointed out that quality alone would not assure the survival of the Bar. He claimed that better protection would result from ring-fenced fees. The risk from the ‘one case, one fee’ proposal for October 2008 was that the winner would be determined by price, not by quality. Sir Ivan Lawrence observed that there had been a long-running government and officials’ agenda to fuse the solicitor and barrister professions. The Chairman was alive to these concerns, and would fight hard to retain the key recommendations from the Carter Review.
5. Bar Council Members 2007
The meeting noted the list of Bar Council members.
6. Carter
The Vice-Chairman gave a brief overview of the position. He had taken over the chairmanship of the Bar Carter Response team, and was working on a range of current negotiations. Detailed discussions were in hand with the DCA on the Funding Order for 30 April 2007. A response would be required within 6 weeks to a flawed consultation paper on VHCC that we expected to be issued on 9 Feb. And negotiations on family law work sought to preserve the hard won GFS from 2005.
Dealing first with the RAGFS, the first meeting of the Stakeholder Update Panel would take place on 1 Feb, and would address a number of concerns that we had recently raised with the Chief Executive of the LSC: for example, LSC and Bar data and performance indicators; confiscation hearings; the future of document management; Cracks and Guilties timeline; mentions and listing; and a review of civil legal aid fees. We expected this work to be part of a longer process of change to the publicly-funded legal process.
The Fee Protocol was now out for consultation, and it was important to keep disciplined fee arrangements that commit solicitors to the terms of the Protocol, and which do not disadvantage the Bar to the benefit of solicitor HCAs. The Bar had given evidence to the Constitutional Affairs Select Committee hearing on the Carter Review, and had corrected any misapprehension that the Bar Council had done better than the Law Society; both parts of the profession had suffered a reduced gross income. Looking ahead, the LSC/DCA’s desire for a single case fee by October 2008 went beyond the Carter recommendations, and must be moderated by the three safeguards recommended in Lord Carter’s interim report: a ring-fenced fee; direct payment to the advocate; and pro rata adjustments to both litigator and advocate fees to avoid unearned relative advantage to solicitors.
Turning to VHCCs, active discussions with the CCU were underway. An acceptable way forward on the solicitor and barrister panels, involving aggregated lists, looked likely. But we remained concerned that the hourly fee rates were lower than the 2005 figures, and our approach would be to move towards a combination of hourly rates and brief fees. More work would be done with the CBA and Circuit Leaders to optimise the future VHCC system.
Sir Ivan Lawrence expressed his admiration and thanks for the Carter Response Team’s efforts. Ian West raised the issue of prosecution fees, and the prospects for early adoption by the CPS and other agencies of the RAGFS fee levels. He pointed out that prosecution fees raised different issues: for example, the extent to which the CPS might offer a case fee net of the PCMH done in-house, in order to subsidise HCA salary costs. The Chairman was keen to allow the prosecution proposals to come forward in due course, informed by the introduction of the RAGFS for the defence.
7. Quality Assurance Scheme for Advocates
The Quality Assurance scheme for advocates was introduced by Philip Mott QC, who confirmed that the paper at Annex C to the Agenda had been accepted, subject to consultation, by the DCA, the LSC, the Judiciary, the Law Society, the SRA and the BSB. Three clear principles were at the heart of the paper: the scheme should be run by the profession, rather than by government or a regulator; grading should be based on evidence of all relevant skills, and in particular oral advocacy; and evidence should be assessed by quality-assured Chambers and firms against criteria closely modelled on the new QC scheme. Mirza Ahmad queried the absence of cost data and, in praising the Competence Framework, suggested that the diversity section should include specific mention of race, colour and religion.
The present intention is that the scheme should cover only legal aid defence advocates, but that extensions to be considered could include the CPS; QCs if the burden of re-accreditation could be avoided; other publicly funded work; and possibly all other advocates – though this would be very difficult in narrow specialist fields. The Chairman re-emphasised today’s legal aid defence context, and saw no foreseeable early application to civil or privately funded work. Concerns about the roll-out of the scheme to all advocates were expressed by Richard Miller QC, Catherine Addy, and Chantal-Aimee Doerries who argued for explicit exclusion of civil practitioners. Nick Green QC was supported by Jonathan Brock QC in concluding that a broader roll-out was unlikely for reasons of constraint of trade. Theo Huckle drew attention to para 3 of the Paper, that specified the early requirement for a scheme for publicly-funded criminal defence advocates.
Ian West was sceptical that Carter’s 3 “guarantees” (ring-fenced advocacy fees, direct payment to the advocate, and pro rata adjustments to both litigators’ and advocates’ fees to head off windfall benefits to solicitors) would survive the onset of price competitive tendering on 1 Oct 2008. He speculated that any quality threshold would form part of the bidding process, and hence that the purchaser would have no need for additional guarantees. Quality is the core relative advantage of the Bar, opined Andy Hall QC, but he feared there would be no comparable quality threshold for solicitor HCAs. The quality relationship with HCAs needed a separate Bar Council debate, claimed Fiona Jackson.
Philip Mott QC was grateful for the diversity amendments, and concluded the discussion with a reminder that this was an interim non-regulatory scheme, and was subject to improvements that would provide better information for the purchaser.
8. Legal Services Bill
With thanks to the work of Gordon Nardell, Desmond Browne QC summarised the 3 briefing notes at Annex D to the Agenda by reference to the Bar Council’s objectives of amending the Legal Services Bill. First, we wish to ensure the independence of appointments to the LSB, by ensuring they are made with the concurrence of the LCJ. Lord Falconer has yet to see the virtues of this argument, observing that the LCJ is perceived “correctly” by consumers as “just another lawyer in the process”. Second, we believe that a ‘light-touch regulator’ needs appropriate hurdles to discourage unnecessary intervention. This could be achieved by including an intervention criterion of ‘serious’ adverse impact on regulatory objectives, not merely adverse impact. Third, to make best use of our current complaints handling skills, and to avoid unwarranted penalties on vulnerable criminal practitioners, we must argue for an OLC discretionary power to delegate complaints handling to approved front line regulators, and for the ‘polluter pays’ principle to be applied only to proven polluters.
Thus far, we had made fair progress in the Committee Stage in the Lords. It was premature to expect the government to make any significant concessions (though the Lords seemed pleased with the government’s subtle response to a proposal to include the public interest in the regulatory objectives), but the time was approaching when our constant lobbying and arguments should start to bear fruit. We remained hopeful of substantive progress at the Report Stage, shortly before the Bill left the Lords: our additional objectives include deleting the proposed power to prohibit FLRs from offering redress, and pressing for statutory recognition of the role of the Inns of Court in Calling and disbarring.
A discussion between Sir Ivan Lawrence QC and Desmond Browne QC on how best to influence peers was illustrated by the brief but dramatic role played in the Lords by the Chairman and his Blackberry.
9. BBC Series
Tim Dutton QC summarised the position on the forthcoming BBC series on the Bar, and described the key role of the Public Affairs Committee as enabling the BBC to hold up a true mirror to reflect accurately the Bar. The series would be filmed largely in 2007; would focus primarily, though not exclusively, on junior barristers; and would be screened in the autumn of 2008. The series producer was Lynn Barlow, who had a good track record in documentary making, including the acclaimed Anatomy of a Crime series and a documentary series on the Probation Service. A draft MoU between the Bar Council and the BBC had been prepared, and this was in the final stage of agreement. Key elements included a small team from the Professional Practice Committee providing conduct advice to relevant barristers, and pro bono advice to clients. The BBC would offer advice to barristers and others being filmed. There would be no compulsion on any barrister to be filmed, and there would be opportunities for individuals and the Bar Council to correct errors of fact and seriously misleading impressions.
The need to accentuate the positive, and to refute the ‘fat cat’ image, was emphasised by Ian West. The need to show the remarkable breadth of the Bar’s activities was suggested by Laura Heaton. Tim Dutton QC rounded off the topic by portraying it as a balancing act between a tremendous opportunity on the one hand, and a tangible risk on the other. But the BBC team’s performance thus far, including a week’s filming of advocacy training at Keble College, had encouraged Tim Dutton QC.
10. New Committees – BAR Standards Board
The Chairman introduced the subject by observing that, contrary to the text of the agenda, the Bar Council was being invited to approve the creation of a new regulatory Education and Training Committee for the BSB, ands also to approve some minor amendments to the Standing Orders governing the BSB. It was noted that the Education and Training Committee could have 2 legal academics, and that there was no requirement for the Chair to be a barrister.
Debate centred on whether the Chair of the new Committee should be a barrister or whether, as favoured by the BSB, the ‘best person for the job’ principle should be adopted. Richard Salter QC was keen to cooperate with the BSB by approving the creation of the new committee, but felt that a lay Chair would become a Trojan Horse on the path to lay Chairs for all BSB committees. A desire for a barrister Chair was expressed by Andrew Walker, who believed that a barrister Chair should be required by the principle of self-regulation, and a similar point was taken by Andrew Mitchell QC. Conversely, Mirza Ahmad argued that the relevant principle should be the best person for the public interest, and he drew attention to the key attributes in the Draft Competences for the Chair. Theo Huckle supported the theme of best person for the job, as demonstrated in the Draft Competencies, and questioned why the Education and Training Committee should be treated any differently to other BSB committees. Likewise, Jane Giret QC and Richard Miller QC thought that the best person principle should apply to all BSB committees.
Jonathan Brock QC recalled the lively debates in GMC and earlier Bar Councils on the model relationship between the BSB and Bar Council, and the Chairman was adamant that we should seek progressive, not retrogressive, improvements in the relationship. He argued that agreeing to the best person principle for the Education and Training Committee, which was different in character from the founding committees of the BSB, was not selling the pass for all other BSB committees. On this occasion, the Bar Council was being asked to give specific approval to a specific proposal, not blanket approval to future proposals. Tim Dutton QC pointed out the outside expertise that was being brought into the new committee, and Stephen Leslie QC wondered rhetorically why a barrister would not be good enough to be selected as Chair. Mirza Ahmad was keen first to promote equality of opportunity, and then to promote a barrister for the Chair.
Desmond Browne QC praised the support given to the Bar Council by the BSB on the Legal Services Bill, and was keen not to alienate the increasingly influential BSB. Approval to the BSB proposal constituted no precedent for the future. However, Nick Lavender was less sanguine about the BSB, which he predicted would eventually fly the nest en route to full independence. Jonathan Small queried whether the Bar was still theoretically vulnerable to a Model A Regulator, and the Chairman confirmed that the relevant Section 29 of the Legal Services Bill could still be changed to accommodate a Model A Regulator.
Philip Mott QC noted the protection afforded by an entrenched Bar majority on the new committees, but believed there was an ambiguity in para 22 as to whether the academic members are included in, or additional to, the lay totals. Errors in para 22 A(a) and 22A(d) were highlighted for correction.
The creation of the BSB’s Education and Training Committee was approved. The minor changes included in the BSB proposed amendment to Standing Orders were approved. It was decided to delete the final clause in para 22 A(d) of the Standing Orders. It was also decided to delegate to the Chairman, in consultation with the BSB, the task of revising the Draft Competences for the Chair of the Education Committee.
11. any other Business
Greg Dickinson QC drew to the Council’s attention the inevitable impact of the current level of prison overcrowding on the smooth operation of the criminal justice system. Nick Cooke QC suggested that a future Bar Council meeting might usefully discuss the Bar’s dialogue with the Judicial Appointments Commission.
12. date of next Meeting
The next meeting will be held on Saturday 17 March 2007 at 1000 hrs in the Parliament Chamber, Inner Temple.
