Bar Council meeting 12 November 2011

Minutes of the Bar Council Meeting held on Saturday 12 November 2011 at the Bar Council Offices


Rt Hon Dominic Grieve QC MP - Attorney General
Edward Garnier QC MP - Solicitor General
Peter Lodder QC - Chairman
Michael Todd QC - Vice-Chairman
Andrew Mitchell QC - Treasurer
Vanessa Davies - Director of the Bar Standards Board and Acting Chief Executive

1. Apologies

Apologies for absence had been received from Jalil Asif QC, Malcolm David-White QC, Martin Griffiths QC, Susan Grocott QC, Clive Lewis QC, Amanda Pinto QC, Richard Pratt QC, Michael Soole QC, Keir Starmer QC, Ian Bugg, Ivor Collett, Stephen Collier, Eleanor Mawrey, Fiona McCreath, Steven Thompson and Nicholas Worsley.

2. Approval of the Minutes

The Minutes of the 1 October 2011 Bar Council meeting were approved.

3. Matters Arising

No matters arose from the 1 October 2011 meeting.

4. Statement by the Chairman

PL opened the meeting by noting the sad loss of two members of the Bar: Claire Miskin, Bencher of Middle Temple and Recorder on the Western Circuit; and Harold Sebag Montefiore, Deputy Circuit Judge and former Bar Council disciplinary committee member.

PL congratulated those elected and re-elected to the Bar Council 2012 whilst saying a fond farewell to those whose term now came to an end. He recognised Stuart Brown QC's last meeting as Leader of the North Eastern Circuit, and Mark Wall QC's first meeting as Leader of the Midlands Circuit. The Bar Council would miss Richard Salter QC's wise and witty counsel, which had always brought a splash of colour to our meetings. He had been a highly successful chair of the Legal Services Committee and played an important and very helpful role in the difficult stages of the pension debate. Similarly, Bar Council stalwart Stephen Cobb QC (SC), Chairman of the Family Law Bar Association (FLBA), whose many achievements were difficult to encompass. Susan Jacklin QC (SJ) was not content with mere election to the Bar Council, and was set to add to her burden that which SC relinquished, as she became the new Vice-Chairman of the FLBA.  SJ had led the Access to the Bar Committee with great success and PL had no doubt would do the same for the FLBA. 
PL was delighted to note the attendance of both the Attorney General (AG) and Solicitor General (SG). It had been a privilege to witness the dedication the Law Officers had shown to the Bar Council meetings throughout the year, and the professions in general. He was certain that their presence today was unrelated to it being his own last meeting, a matter which he approached with some ambivalence.

PL had been a member of Bar Council since 1994, and he ended his term with a very heavy meeting Agenda. PL had never imagined when he came to the Bar that he would reach this and other milestones. He had met so many extraordinary people and found himself in extraordinary places. Four particular memories stood out. First, speaking at a reception in Hyderabad and having to shout because the speakers were not working. Having mastered, he hoped, sounding welcoming whilst shouting, PL found himself sending the Lord Chief Justice and Master of the Rolls into cartwheels, introducing them just as the sound kicked back in. Second, being stranded in Russia trying to get to an interview with Radio 4. He thought the arrangements had been sorted until he reached the lobby of his hotel. The hotel had cancelled his car, no one knew where the car was meant to go, and when a replacement car came along no one knew if it was taking him to the right place or not. Thankfully when Radio 4 called, miraculously he found that he was in the right place at the right time. Third, how could he forget his Wales and Chester Circuit visit in February, with a business dinner booked on what neither he nor the Leader had realised was Valentine's night. It was an interesting experience conducting business across red roses. Fourth, being on board a Wizz Air flight, sat so close to the labourer next to him that he could absorb his delicate aroma for the entire journey. It had been a difficult year, but he hoped that his leadership had at least been satisfactory.

Domestic matters

Much had happened since the last Bar Council meeting on 1 October. The heady excitement of those last few minutes of the rugby match that morning faded all too quickly, and the promise shown by the English rugby team was not fulfilled. PL found himself pondering the universality of that theme as he turned to his visit to the Tory party conference.

After the Opening of the Legal Year on 2 and 3 October, he had travelled up to Manchester where the Bar Council team continued our programme of informing the political classes of the dangers in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill. It was at the beginning of the conference that the funding orders changing rates of remuneration began to come into force. They had met a wide range of ministers and backbenchers and spoke at various fringe events. However, there was little comfort for us seeking some indication of concession in the Bill, and it left the House of Commons largely unchanged.

The Manifesto for Family Justice was sent to all parliamentarians at the end of October, the product of a highly effective coalition conceived by SC and Toby Craig (TC), our Head of Communications. The Manifesto brought together groups such as the Women's Institute, Liberty, the Children's Commissioner, Co-ordinated Action Against Domestic Abuse and others, to show the wide opposition to certain elements of the Bill. It was a matter of some regret that the LC in the third reading of the Bill in the Commons had said "I am a lawyer, and I have the highest respect for lawyers and no intention of offending the legal profession, but in the lobbying of this House and the upper House we have had an army of lawyers advancing behind a front of women and children-vulnerable claimants who they say would not be represented if they are not paid as much as they are now. I am afraid I do not believe that." PL thought we knew how to respond to that declaration. The Bar looked forward to a rather closer analysis of the issues in the Lords.

By way of interlude, and as a particular reminder of the importance of public funding, 8 October was the occasion of the Young Bar Conference. PL had the privilege of being a keynote speaker. "Diversity in times of adversity" brought together vibrant and thought-provoking contributions in a range of sessions to consider how young practitioners should adapt to the changing legal landscape. PL congratulated Nichola Higgins and her team for an excellent event.

The Bar's programme in the Upper House had been progressing well. In preparation for the arrival of the Bill we had held a succession of meetings.

On 19 October PL and Mark Hatcher (MH), Director of Representation and Policy, had visited variously Lords McNally, Bach, and Clement-Jones. In crossing the floor of the House to the opposition, Lord Bach had travelled his own road to Emmaus, and was now trumpeting the cause of underpaid lawyers. On 26 October 2011 he sought to move that the civil funding order be withdrawn. We provided him with detailed briefing material. The matter was not pursued to a division but it gave timely profile to the important issues to be considered by the Lords.

With the assistance of Lord Carlile QC (elected to the 2012 Bar Council) PL hosted a cross-party meeting on 10 November. Presentations covering different areas were given by SC for the FLBA, Andrew Ritchie QC for the Personal Injuries Bar Association, Max Hill QC for the Criminal Bar Association and Robert Latham for social welfare. Influential peers such as Lord Thomas of Gresford QC, Baroness Shackleton and Lord Borrie QC came to the meeting. A briefing note was prepared for all who attended and the note was sent to many others. A further meeting would be held on 21 November - the date of the Second Reading.

On 14 November PL would meet Lord Pannick QC to investigate opportunities he might have to draw together influential cross-benchers to challenge the Government. The Bar Council team had also prepared briefings targeted on single issues for a selection of parliamentarians who we knew had particular interests, for example a note had been sent around that week on accessing frozen assets to pay criminal defence costs.

PL visited chambers in Liverpool on 24 October and then went on to Manchester on 25 October where we held the second of our Public Affairs Committee Circuit meetings. Local practitioners and local press were invited to the reception which followed. The following morning with Michael Todd QC (MT), Vice-Chairman of the Bar, he visited a series of chambers in Manchester. PL was particularly moved by the sense of despair amongst many whom they had met. Their first visit was at 7.15 am because of the court commitments of some they were meeting. This was a group of senior juniors who had been unsuccessful in the Recorder competition, and they were very unhappy about the process on the Northern Circuit - with the Judicial Appointments Commission (JAC) first deciding that there was no business need and then deciding that there was such a need. In the interim these applicants had applied off-Circuit and failed, but were then told that they could not make a further application on their own Circuit as it was all part of the same competition. This was not helpful for those who were already severely demoralised. The next day, 26 October, PL took the issue up at a meeting with the interim Chief Executive of the JAC, Nigel Reeder and raised the question of the appropriateness of the test. There was no comfort for the Northern Circuit, but on the general nature of the test the JAC appeared to recognise that it was unhelpful to say that there would be no law involved and then present candidates with a law-based problem. Also, granting a mere 15 minutes to acquaint oneself with the bad character provisions of the Criminal Justice Act 2003, which had taken many days of Court of Appeal, Criminal Division time over the years, was not entirely sensible. The JAC would look into PL's suggestion that there must be sufficient, advanced notice of any black letter law.

That same day PL appeared before the Constitution Committee of the House of Lords to give evidence about improving the diversity profile of the senior judiciary. There was a reluctance to impose quotas, and clear support for continuing to reward merit, but finding the right mechanism was difficult. The focus seemed to be on achieving a form of judicial career in which there was a real prospect of promotion through the levels from District Judge up to the Supreme Court. The thinking was that it might help many women if they could take a lower level appointment at a time when they had family commitments, and develop their careers into more demanding roles as their other commitments diminished. PL took the opportunity to remind their Lordships in the committee that cuts to legal aid were likely to have a disproportionate and highly adverse effect on the diversity profile of the legal profession.

On 27 October the Unlocking Disputes initiative was launched at the new Rolls Building (which would itself be officially opened on 7 December). This had been another very successful exercise in the effective use of coalitions of interest, with TheCityUK, the Law Society, the Lord Mayor and the senior judiciary contributing. The initiative was steered by TC in conjunction with MT, and the Bar had gained a significant profile in a campaign which firmly underlined London's pre-eminence as the international centre for dispute resolution.

The 26th Bar Conference was held on 5 November. It was a hugely successful event, attracting the largest number of attendees and greatest amount of sponsorship to date. Run for the first time by the Bar Council's own Member Services team, the Conference more than paid for itself. PL congratulated the organising committee and the brilliance of the Conference Chairman, Taryn Lee.

On 7 November PL met with Peter Smith, the Roman Catholic Archbishop of Southwark, to gain his help with peers who might come within his influence. They had simultaneously made contact through the Bishop of Leicester with Church of England Bishops who sit in the Lords; and approaches had been made to the Methodist Church and to the Chief Rabbi. To use MH's language, we had been reaching out to the faith community.

That evening saw the launch of Pro Bono Week with a panel event at the Law Society. The importance of the event was clear by the participation of Lord Neuberger MR on the panel and the attendance of the AG and SG. At a time of great pressure on legal services the need for pro bono had never been greater. Although, as PL knew the AG and SG appreciated, it could not replace proper publicly funded provision for access to justice.

On 8 November PL went to see the Chairman of the Legal Services Commission (LSC), Sir Bill Callaghan (BC). Late payment continued to be a serious problem, which for many had moved beyond the desperate. The Chief Executive, Carolyn Downs had resigned and would leave on 18 November. The LSC was in chaos and understaffed. They had reduced their head count only to have to recruit again to address problems with the late payment issue. With low morale, a creaking computer system, and no clear future, they were failing even to achieve their current target of 85% of fees paid within 8 weeks. However, PL made it very clear that this was no comfort for barristers who had been waiting months and months for their payments, their dismay turning to deep anger. The inadequate proposals for hardship payments were an insult to those who simply wished to be paid for the work they had done, not seek charity. A revamp of the system was in progress but this was slow and hampered by increased security requirements against hacking. The appointment of an interim Chief Executive was announced on 11 November and a meeting had been requested at the earliest opportunity. They were seeking a permanent replacement and would be interviewing in w/c 14 November. They hoped for an appointment by the end of 2011, but if the speed with which the LSC ordinarily moved was anything to go by, it was more likely towards the end of 2012.

They had been told by BC that he was expecting an announcement at the end of the month, by the LC on the timetable for a paper on competition. There was much speculation as to what it might contain. It appeared unlikely that competition in the Crown Court would be in their planning in this parliament, not least because of the efforts of the outgoing CEO, who had been receptive to PL's points. However, competition even in the lower courts might still be a problem, particularly in cases that progressed through the system. There was a campaign mounted by e-petition against competition in criminal defence services and PL imagined that most Bar Council members would already have received an email to that effect. PL went to see the AG immediately after the meeting and acquainted him with the late payment problems and other issues. PL knew that the AG would be a helpful voice. Although unable to comment at this moment, PL also knew the AG had contributed to the debate on competition.

The following day the Chairman and Chairman-Elect, with MH met Lord Green, the Minister of State for Trade at the Foreign and Commonwealth Office , with whom they had discussed EU contract law, support for Bar Council initiatives abroad, and in particular openings for criminal and regulatory work in Russia and GCC countries. They had sought the Minister's assistance with the UKBA restrictions on foreign pupils and foreign junior tenants. Only about 50 were allowed each year, but they became vital contacts for overseas work in the future. There was also a danger of reciprocal actions against English and Welsh barristers who went to work in their countries. Lord Green was both interested and sympathetic.

PL's Circuit visits would continue when he travelled to Hull and York on 15 November.

International matters

The Bar Council's International team had again contributed towards a successful Opening of the Legal Year programme on 2 and 3 October.

PL had travelled to Belfast to meet the American Bar Association (ABA) from 9 to 11 October.

The International Bar Association in Dubai took place from 29 October to 2 November. Contrary to the view of some, these international trips were not jollies. Over 70 English and Welsh barristers attended the meeting, 8 sponsored under the Bar Council scheme, 4 of whom were from publicly funded sets. The Bar was well represented with speakers in many significant sessions, and also in side meetings with the Korean Bar (whose market had just been liberalised), the Hong Kong Law Society, the Russian MoJ, and the ABA. These were all positive meetings and all discussed business-based delegations to take place over the next year.
On 19 November they would go to China to meet with firms who were sending work and Lord Chancellor's Training Scheme alumni, and look forward to further opportunities for the English and Welsh Bar. Talks would be held on the Bribery Act and corruption.

In December, at the expense of the Emirati government, they would go to Abu Dhabi to train judges and advocates.

Thoughts of winding down at the end of his Chairmanship were far from reality, and PL's agenda remained relentless.

Inviting questions from the floor, PL was asked rhetorically whether Carolyn Downs would receive any payment when she left the LSC, and if so whether she would wait 6 months to receive it. PL suspected that any salary due would be paid promptly.

5. BSB Report

Baroness Ruth Deech (RD) said that she could not let this morning go without saying a heartfelt thank you and goodbye to PL. She expressed her frustration that as soon as she got to know a Chairman of the Bar, their 12 months came up and they moved on. It seemed like yesterday that she witnessed PL's splendid inaugural speech. PL had remained a doughty fighter throughout the year, regardless of the outcome. His rousing speeches were enjoyed both here and abroad. She hoped that the organisation would not lose contact with PL, and would benefit from further input.

RD remarked that her working relationship with Andrew Mitchell QC (ARM) ran even deeper, as he had been Treasurer for several years. She thanked ARM for his continued support: encouraging the BSB's independence, with just the occasional dig in the ribs when needed. He would be very much missed.

RD looked forward to working with MT, who had already been inducted into some of the BSB's business. She was sure that he would attack the role of Chairman of the Bar with as much vigour as PL. Maura McGowan QC (MM) as Vice-Chairman and Stephen Collier as Treasurer would doubtless hit the ground running too.

RD confined herself to a brief report on BSB matters, explaining that the main BSB contribution that morning would be to feed in their perspective for Item 8 (Green Review: Chief Executive Job Description), as it related to the organisation as a whole.

The Quality Assurance Scheme for Advocates (QASA) was on the move, although the schedule was working out longer than hoped for. She told members to look out for the QASA roadshows taking place in November and December.

The CPD consultation was now closed. RD was grateful to all those who had contributed. The proposals would now be considered with the benefit of their input.

Entity regulation continued to move forward. There would be a major consultation early next year, with a re-styled Code of Conduct to incorporate entities as well as individuals. Regulation would be complex, and the BSB had already suffered occasional setbacks through adjustments required by the from LSB. However, the regulatory model they would offer would be different to that of the Solicitors' Regulation Authority.


In relation to the closed CPD consultation, Esme Chandler asked when RD expected to implement the proposals, given the wide-ranging Legal Education and Training Review (LETR) that was taking place independently.

RD said that the BSB would push on regardless of the LETR. The Board would consider proposals early next year. However, there would be sufficient lead before changes were implemented.

MM asked for an indication of progress on the consideration of changes to the direct access rules.

Dr Vanessa Davies (VLD), Director of the BSB, confirmed that the Standards Committee had reviewed a draft and a paper would be issued for consultation in the New Year. The first question would be on accepting work from clients who might be eligible for legal aid; and the second on whether or not to relax the 3-year rule.

Without asking for a complete commitment, MM asked when the changes might be implemented.

VLD explained that the timetable was dependent on the LSB. They hoped that the LSB would not feel it necessary to apply a full 3-month consultation process, which would delay changes until spring 2012, but instead take the changes through their 28-day process which would facilitate earlier implementation.

PL added that he had raised the difficulty with the LC and the Chair of LSB, and both seemed to be in favour when the situation was explained. The latter had not realised the restriction was in place, having been under the same impression that we were at the beginning of the year, that if a client opted out of legal aid there was no problem in accepting work from them.

6. BSB Constitution Amendment: Paragraph 2

Nicholas Lavender QC (NL) introduced the proposed amendment of paragraph 2 of the BSB constitution, as shown at Annex 2 of the Agenda. To give a little bit of history, NL recounted that when he and PL joined the Bar Council in 1994, the profession regulated itself. There was nothing wrong with that system, so it only followed that it had to change, with Sir David Clementi declaring in 2004 that the legal professions were not competent to regulate themselves. However, thanks to Sir Geoffrey Vos, Clementi modified his position and agreed that regulatory authority could be delegated to an in-house regulator. NL observed that we had much more affection for our regulator now than in the first 3 years of its existence. The BSB regulated the profession on our behalf. The alternative could have been a body such as the Legal Services Board (LSB) regulating the profession. NL reminded Bar Council of Hillaire Belloc's advice "Always keep tight hold of Nurse, For fear of finding something worse!" As it was, one job of the LSB was to regulate the relationship between the Bar Council and its regulator the BSB. The LSB issued a series of Internal Governance Rules, such as the requirement for a lay majority. The issue now at hand was the status of the Chair and Vice-Chair of the BSB, the LSB saying that we should remove any restriction in terms of their lay or professional standing. Under the current wording, unless we changed the Chair and Vice-Chair simultaneously every 3 years or every 6 years, then we were ham-stringed as to who could be chosen according to their status. If we wanted to have a situation where the Chair could be either lay or professional then we would not want to be restricted by the wording, so the alteration was in fact sensible. It should also be remembered that the appointment of the Chair and Vice-Chair would be managed by the 7 members of the BSB Appointments Panel in the form of: (1) A member nominated by the Lord Chief Justice; (2) The Chairman of the Bar Council, ex officio; (3) The Chairman of the BSB, ex officio; (4) A member nominated by the President of the Inns' Council, who shall be a practising barrister; (5) A member nominated by the Chairman of the BSB; and (6) Two members who are lay persons, nominated by the Chairman of the Bar Council and the Chairman of the BSB: (a) at least one of whom shall be accredited by the Office of the Commissioner for Public Appointments; and (b) one of whom shall be the Chairman of the Panel. NL hoped we could trust such a Panel to use the same good judgement in the future as shown on the last occasion in picking the best person for the job.

The amendment to the BSB Constitution was agreed.

7. Bar Council Acting Chief Executive: Ordinary Resolution

Oliver Delany (OD), Director of Central Services said that he had expressed surprise when he had been asked ahead of the meeting to speak to this Agenda item. He now realised why, as surely no one out of choice would wish to speak after NL.

OD reminded members that at the May 2011 Bar Council meeting a rotation of the Acting Chief Executive mantle from himself to MH, had been agreed, with the Directors meeting regularly to manage the responsibilities as a triumvirate. Now it was time for VLD to undertake 3 months as Acting Chief Executive. OD invited Bar Council to appoint VLD from 1 November 2011 to 31 January 2012. In order to avoid returning to Bar Council with another Resolution in the New Year, he also asked for the approval of the appointment of himself and then MH for a further 3-month term each, until such time as a Chief Executive might be appointed.

OD confirmed that VLD would delegate to MH any representative matters which arose during the course of her term that as Director of the BSB she was not permitted to get involved in, thus avoiding any conflict of interest.

The Ordinary Resolution was approved.

8. Green Review: Chief Executive's Draft Job Description

PL said that members would recall that he had introduced a review of the role of Chief Executive, to decide whether or not to replace David Hobart following his departure in May 2011, and if replaced in what way. The question needed to be resolved. Other matters in the Green Review would be addressed at a later stage.

Today's meeting would not be the forum for making the final decision, but for expressing Bar Council views so that the Officers could make a final decision.

The options were either:

1. To decide to leave the situation as it currently stood, and allow the Directors' Group to carry out the Chief Executive function, possibly supplemented by a group of "wise men". This option would save around £160k in gross salary costs, along with associated recruitment costs in 2012. Perhaps it could be said that the Directors were doing the job perfectly well and we did not need to recruit.

2. To decide to move forward and appoint a Chief Executive Officer (CEO). Whilst the Directors had carried out the work in the interim satisfactorily, there could be a view that we were only coping with issues, not driving forward issues and setting our own agenda.

A draft job description had been included in the Agenda. The question for the BSB was to what extent the role would be the CEO of Representation and Policy, and to what extent the CEO would stand above the BSB. PL's own view was that the CEO would stand at the apex of both branches of the organisation as a permanent figure, whilst the Chairman of the Bar came and went every 12 months. He was unsure to what extent the BSB felt this compromised their position.

Andrew Walker QC (AW), as a member of the Green Review Group, spoke to the papers included at Annexes 4, 5 and 6. The Review at Annex 5 concluded that the Bar Council should have a CEO. AW was concerned that the organisation should continue to make the Clementi B+ model work, and would be troubled if anything were done to weaken the Bar Council's role as Approved Regulator (AR), and for arrangements to slip to an A- model. The CEO was part of the process of making that model work. So far as other needs for a CEO were concerned, AW said that he was amongst those who believed that the Bar Council should be looking to move forward. He agreed that we were coping under present arrangements, but whether we were running effectively and efficiently was a matter for debate. A CEO at the apex of the organisation should address not only our committee structure but also the staff structure to ensure we were delivering as best as we could. Looking at the job description at Annex 4 drafted by Nick Green QC (NG), AW highlighted the phrase "ultimate responsibility for all organisational matters", which suggested to him a role that ensured that the Bar Council was running well, not just acting as the fall guy if things went wrong.

As to Sheila Drew-Smith's (SDS) report at Annex 6, AW warned that the Review Group had taken a long time to deliberate, interviewed widely, and considered long and hard how to proceed ahead of coming to their conclusions. However, clearly there was a view to the contrary, and for those who had read SDS' report, he would address some of the points she made:

- SDS suggested that the Directors could undertake the Bar Council/BSB coagulant/facilitator function of a CEO using their approaches, attitude, and willingness to engage. However, AW saw no reason to believe that they could successfully perform this function long-term. Similarly, AW failed to see the leadership function being run by committee as a permanent solution, and was particularly concerned about leadership in times of crises.

- SDS had looked at other organisations for analogies, but whilst that was helpful to an extent, the B+ model defied analogy.
- SDS put the Chairman in the role of undertaking reviews on the performance of the Directors, but this was not something a barrister was well-equipped to deal with, and AW felt we needed a professional in the role to do that job properly.

- As to external expectations that a professional organisation should have a CEO, AW focussed on the particular role the CEO had with the LSB in representing the AR. The role of AR was essential, though some might not realise how often the Bar Council was called upon in this role. Without a CEO there would be a risk of increased separation from the BSB.

- SDS noted the wise counsel and high-level management experience a CEO would bring, and AW saw the latter as recognition that without a CEO we would not have effective management and control.

AW could not see anything in SDS' report to suggest that appointing a CEO was not the right thing to do. It was costly, but for him it would be money well spent. As to whether the CEO would oversee only the Bar Council or the Bar Council and BSB, he said that the intended role at the apex was inherent in the B+ model. Whilst we had a lot to learn from the BSB about how we ran ourselves internally, we remained one organisation, and should have an overarching CEO at the pinnacle, as described by PL.

Sir Geoffrey Nice QC (GN) presented his and RD's position. He explained that when he and RD were appointed 3 years before they considered the possible need for restructuring the organisation, but had had no opportunity to implement changes until the resignation of David Hobart. He saw this as a wonderful opportunity to consider a more radical approach to the organisation.

GN saw the job description put forward by NG as a recipe for conflict between the BSB and Bar Council. It interfered with the independence of the BSB and even deprived it of being the ambassador for its own organisation. The incumbent would expect to be responsible for all staff including VLD and her BSB staff. Moreover, the CEO would respond on behalf of the AR to consultations, when it was the BSB's job to argue its own point of view. With responsibility for oversight of the BSB, the CEO would be left in no doubt as to their right to get involved in all business and attend whatever committees he or she wished to.

Apart from the job description being wholly inappropriate, GN suggested that the Bar Council should look at their structure ahead of appointing any CEO. The BSB recognised that leadership of the Bar was an enormously difficult task, encompassing employed and self-employed practitioners along with the Circuits, Specialist Bar Associations and Inns. It was a fractured body leading a variety of interests, which sometimes came into conflict. The Bar Council was not well served by its history, which was of huge importance and value but left the organisation with a Chairman who only served for one year, and a Council of such a size that it could not be an executive body in the same way that a board could. This left the Bar Council weakened, not so much in relationship to the BSB, because we had no conflict, but in representing the profession. He thought the Bar Council should be more symmetrical with how the BSB ran itself.

GN tabled two coloured diagrams to illustrate his thoughts. The first diagram showed the current state of affairs for the Bar Council and BSB. The BSB structure had a Chair who could remain in office for 3 to 6 years. He said that the Bar was lucky to have a BSB Chair in RD who like himself had grown up with complete faith in the independence of the Bar. A Chair who could be in office for 6 years could very easily take over as the focal point and publicity figure for the Bar. A Chairman of the Bar, however well they served, was only there for 12 months before being replaced. Leaders built reputation through long service. The 8 lay members the BSB had on their Board came from very high levels in different professional spheres, but they were not necessarily persuaded of the wisdom of a separate barrister profession, nor the wisdom of separate regulation. If they looked across at how the Bar was organised and represented, and saw anything less than a business-like structure, their confidence would decrease. The current structure of the Bar Council was not well equipped to deal with the modern world. The Finance and Audit Committee sat centrally, and effectively regarded their decisions as final. The Bar Council delegated their AR function to the Officers, including the Chief Executive. They did not meet regularly as an AR and in a sense it did not exist except to write to the LSB once a year. However, the Chairmen's Committee brought together the Officers from both sides.

GN's second diagram put forward a model that was more symmetrical with the BSB. Both sides had a Chair/Chairman, leading a Board or Council. He suggested that the Bar Council should have a Chief Executive in lieu of a Director of Representation and Policy, to oversee that function only; and the BSB would similarly have a Chief Executive instead of a Director. The Director of Central Services would be replaced by a Chief Operating Officer in the middle of the organisation, who would respond and answer to both sides. The AR functions could be taken up by the central Finance Committee and Audit Committee.

RD pointed out that, as the Council knew, the BSB yielded to no one when it came to the independence and value of the Bar, no matter what the pressure. They had thought about the interests of the entire profession in suggesting this model. By sheer coincidence, the SRA and Law Society had come to the same view, and would be adopting a similar structure, with a committee at the top to bring their two sides together. RD did not believe that the LSB would allow the BSB to accept the draft job description for a Bar Council CEO as it currently stood. It was not regulation-compliant.

NL asked the meeting to return to the remit of the morning's debate: should we have a Bar Council CEO? This was not a review of the structure of the organisation. The Bar Council lived in a state of constant flux, and as soon as one committee reported, another was set up. If GN wished the Bar Council to look into their structure they could do so in due course, but today was not the day. In his view, the discussion thrown up only emphasised the need for a CEO. NL thought that both of the diagrams drawn up by GN were very wrong. The AR for the profession was the Bar Council. Any diagram which did not start with that at the top and everyone else working from that point was flawed.  Of course the BSB must be independent from Representation and Policy work. However, this Council still had a supervisory role in the regulatory function, and approved the allocation of resources. In the Standing Orders the Bar Council Officers, including the Chief Executive, had a role to ensure that the independence of the BSB was preserved. The Directors needed someone to turn to who kept that independence in place. This amendment to the Standing Orders was made only last year and there was nothing wrong with it. We needed a CEO.

Nicholas Hilliard QC (NH) queried what other opportunity the Treasurer could give us for saving £160k+ in next year's budget. Over 3 years a CEO would cost almost £½ million. Our wider membership of the profession if given the opportunity would say a resounding "No" to spending this amount of money. He thought that those already equipped at the Bar Council to carry out this function should do so, those who were lucky enough to have jobs. NH was sad to see that SDS was not at the meeting, and also sad that Council would not be making the decision as a whole. He was in no doubt that the Officers would decide to keep a CEO.

PL pointed out that SDS was never intended to be included in making the final decision. Whatever decision the Officers made, which they might not make swiftly, would be informed by the views expressed today.

Stephen Leslie QC felt that a 12-month Chairman of the Bar gave enormous power to a permanent CEO, and this was not healthy for an organisation. He felt that things had run brilliantly this year without one.

Charles Hale said that he was more convinced than ever of the need for a CEO having listened to the arguments put forward today. Even if the appointment did not have a long contract, it was a time of great change in the profession, and he agreed with NL that we needed someone to guide and assist us. He was not convinced about the financial argument, because part of the role's accountability could be to govern the organisation in such a way that we would save money rather than waste it. They would be employed by us, and their power would be designated by us.

Richard Atkins QC (RA) was also of the view that a CEO was vital. He was at St Philips Chambers in Birmingham and it was necessary even at that level to have a CEO. Moreover, the Bar's CEO was required as the Chairman's right-hand man or woman. The argument that the profession would not buy it was a poor one, as it was for Council to educate the profession on the best way forward. As to the power argument, RA had confidence in Council's ability to ensure that the CEO they appointed was doing what we wished them to. RA supported all that had been said by NL.

Tricia Howse (TH) was of the view that we did not need another CEO, but rather a Chief Finance Officer (CFO) to oversee the Central Services function. She agreed with GN that we were going about it the wrong way in looking at recruitment ahead of looking at the structure of the organisation. Melissa Coutinho agreed, and felt that clarification of the strategy and oversight functions was required.

Asked to express his own view, PL said that any Chairman would prefer significantly greater support, as there was always scope for more assistance in a very demanding job. Standing away from the pressures of the job, he felt that what the previous Chief Executive had provided was someone to look beyond the immediate horizon. We would want to recruit someone who could do similarly, whilst bringing their own gifts and experience. On that basis, PL was in favour. However, in the interests of good husbandry, there was a pull in the opposite direction. The organisation had continued to run, and some had been kind enough to say run well, over the course of the last year.

MT was not convinced of the need for a CEO. He shared NH's concern that £160k was too much to afford. He thought that the Secretariat needed a shake up to be leaner and more responsive, but whether that shake up was conducted by a CEO or an external review was open to debate.

ARM said that he had watched the Chief Executive's role diminish during his last 4 years as Treasurer. If regulatory requirements were such that the BSB could not accept a Bar Council CEO who oversaw their activity, how could we justify spending £160k plus recruitment costs for someone just to oversee MH and look at how the Secretariat should operate? Looking at GN's diagrams, we had the structure in place to deal with issues that arose through the Officers or Chairmen's Committee as necessary.

AW had two observations to return with. First, in terms of the job description, he had been unaware of any objections until GN had stood up that morning. They had sought to make clear that a CEO would not interfere with the BSB's remit, but could redraft the job description if this needed to be emphasised further. Second, he did not agree with GN and TH that the review was being conducted the wrong way around. The Green Review Group had looked at the situation more widely, and had a very clear idea of structure when they prepared their report.

As to other points, the Green Review Group's Initial Report had considered the alternatives to the 12-month term of the Chairman of the Bar but had concluded that the profession would wish to be led by a barrister, and that it was unrealistic for a barrister to take 3 years out of practice to lead the profession, not least due to the difficulties then of returning to practice. The measures suggested to address the resulting situation included recruiting a CEO, involving the Vice-Chairman Elect in leadership earlier on, and retaining input from past Chairmen of the Bar. The Officers and the General Management Committee (GMC) could call the CEO to account if it was felt there was an imbalance of power. There was very useful material in the Standing Orders that we were not currently following, including the role of GMC. GN had referred to AW's mention of symmetry and had produced two charts; but the Review Group had also considered more charts than these two, and the greater symmetry which AW had suggested would be desirable related to internal procedures and not governance structure. The fundamental principle remained that we needed to make the B+ model work, and therefore a mechanism at the top of the organisation to carry out the AR function was necessary. He supported NL's and RA's view that a CEO should carry out that function. As to MT's desire to keep the Practising Certificate Fee (PCF) at the lowest and most efficient level possible, was that really a role for a CFO? Perhaps, but why recruit for a role limited to that function, if we could achieve added value in a CEO carrying out other functions too?

In terms of salary, RD said that an additional point was that Bar Council would need to be alert to salary creep. She had never met directors who worked as hard as VLD, MH and OD, all on lower salaries than proposed for a CEO.

MM put forward that we should first look at the principle of whether we needed a CEO - which in MM's view they did - then afterwards address cost.

PL invited a show of hands of those still present: 24 voted in favour of recruiting a CEO, and 23 against. PL observed that previous Council meetings had been more strongly in favour of a CEO, and suggested that perhaps the longer we considered the issue the harder it became. He invited email thoughts from members if they had any further points to add. Picking up on the points made about a Chairman only serving 12 months, for PL the matter had nothing to do with returning to practice, but the health implications that would rule out serving a 3-year term. However, he agreed with the Green Review's recommendations of a continued role for past Chairmen of the Bar.

9. Budget 2012/13

Ahead of ARM speaking, PL introduced the item by explaining that a number of the papers in the comprehensive bundle at Annexes 7, 8 and 9 were included only as evidence of the difficulty of the decision-making and issues to be considered when establishing the PCF.  GMC had decided that week to carry over deliberations into next year. PL pointed out the cost-neutral basis of much of the international activity, as well as the money earned by Member Services. Such measures helped to keep the Member Services Fee (MSF) to a minimum. However, if we did not continue to receive funds for the MSF, we would not be able to carry out our trade union responsibilities. Members would note the proposal to cut expenditure for the Bar Council's Brussels office. PL was aware that this raised concern, and this would be addressed during the course of the debate.

ARM faced his final countdown, in the form of the fourth budget he would present to Bar Council. He gave wholesome thanks to members for their support for the pension levy over previous years, which had relieved the future profession of enormous pressure. Talk of a deficit made it sound as though the Bar Council was broke. In fact, we did have reserves, but it was important that we kept those reserves, and continued to accrue them. ARM thanked deeply and with great affection Brian Buck, Chief Accountant, and his team; and the Records Office, who did such a magnificent job of collecting the PCF each year. He thanked the three Directors for taking the Bar Council forward since David Hobart's departure from what had, regrettably, became an increasingly diminished role. ARM applauded the BSB in how robustly it examined its use of the Bar's money.

As to the 2012/13 Budget, ARM suggested that there was little in it to cause controversy, and a 3-5% rise in the PCF was not unreasonable. The Budget had been through rigorous testing. The Directors had challenged each other, and that had worked very well. However, cuts had to found. The cut to cause most controversy was the closure of the Brussels office. The office was situated in a building housing other Bar associations and law societies. The room we paid for was only used around 60 days per year. We had a self-billing consultant who undertook most of her work from home, and we sought to cap costs. In ARM's view there was little justification for both the Law Society and the Bar Council to be represented in Europe. He wondered whether there should not be a joint Office to promote the common law and the English and Welsh way of doing things to the EU.

Another issue influencing the PCF was the hit borne by the MSF. People who did not have to pay did not pay, and we could not force them to. The Employed Bar opted out in great numbers. Pages 136 to 147 of the Agenda illustrated how we used the PCF for permitted purposes, as applied to Representative activities. Early discussions with the LSB had allowed us to come to this rather robust view. Campaigning for legal aid and some international work fell outside of this remit, but much of our activity was permitted, and this allowed us to keep the MSF low.

There was good news on the pension levy, and the Bar could move forward with confidence for the future. As a result of the consultation, the scheme would remain open, although only 9 members of staff had opted to stay in the revised defined benefits scheme. As a consequence of the low-take up, there was some concern as to how fund the scheme going forward, as those who opted out became deferred pensioners, and would now see in accordance with the deed their pension being re-valued at 5% every year. There would be a very small pension levy this year of £2 per year of Call. Whilst ARM could not leave MT, SC and MM with the promise that there would never need to be another levy, he at least had peace of mind that the pension was well-funded for the future.

In summary, apart from cuts to the Brussels office, there was nothing in the Budget to cause much controversy. There was controversy however in how to raise the PCF.

First, the proposals that the Employed and Self-Employed Bar should pay the same amount had been badly received. ARM said that at the very least the statutory regulatory levies on the profession should be applied equally. The LSB and Legal Services Ombudsman charged the levies on a per capita basis, with no distinction made between Employed and Self-Employed practitioners. The Bar Council should collect the levies in the same way. ARM noted that Lord Goldsmith QC was amongst the Employed practitioners currently being subsidised by the Self-Employed Bar. Inviting support from the Law Officers for his proposal, the AG pointed out that sadly, as public services worked, everyone was subsidising the Law Officers.

Second, there was apparent controversy in raising the cost for those in the 3 to 4 Years' Call category to pay £125 instead of £67. However, ARM said that this should not in fact be controversial given that if they earned below £40k, a waiver would take the level back to £67.

In relation to the Budget itself, the proposals were set out at pages 132-133 of the Agenda, showing how incomes would rise compared to the current budget, had the current budget been a 12-month instead of 15-month cycle. The 2012/13 Budget included entity regulation set-up costs, a new department of the BSB which would eventually wash its face. The Budget had been prepared with the expectation that we would receive less money from the MSF, and we predicted income of £1.2 million instead of £1.4 million as raised previously. The Inns' subventions were also expected to reduce, and would continue to do so in the future. ARM confirmed that each expenditure item had been tightly budgeted, and examination of the different departments revealed very little change. ARM suggested that £190k in the Budget for a CEO might be put to better use.

The 2011/12, 15-month deficit budget had been approved by Bar Council last year, and we were now in surplus. ARM expressed his hope that finances for 2012/13 would prove equally sound.

PL reminded members that today's meeting would not consider the more difficult issues laid out in the papers, which GMC had decided should be consulted on and considered in more depth. He invited views on the 3-5% increase only, with it left to be determined how it would be raised.

No views were put forward on the percentage increase.

Michael Patchett-Joyce (MPJ) and Richard Miller QC (RM), as Co-Chairmen of the European Committee (EC), briefed Bar Council on the issue of the proposed cuts to the Brussels office. MPJ said that one could be forgiven for thinking that the EC represented a minority. He argued that it was important for the Bar as a whole to have a presence in Brussels, and did not wish to see a move from the present tense to the pluperfect tense, of having had a presence in Brussels. Whilst the EC could look for lower cost accommodation, having an address in Europe gave the Bar Council a foot in the door in Europe that we would not otherwise have. We should not engage in a false economy. The EC performed the hard-graft but vital function of monitoring issues of direct importance from the EU. There were absolutely no jollies. The EC had a pan-Bar reach and covered every interest group in the profession. They had held a conference in conjunction with BACFI and the Bar European Group at the end of September that spoke to the Criminal Bar and Family Bar, not just a minority of practitioners. The Bar Council was listened to by Ministers, member states in Europe, the European parliament and counterparts in Europe. We had enormous respect and presence. We could not throw that away, expecting the Law Society to lobby on our behalf. The EC undertook zero-cost, self-funded trips, with members paying for their own accommodation. Any reduction would therefore directly impact on the Brussels office itself. MPJ expressed the EC's willingness to negotiate on changes, but found that the process so far had left much to be desired. He and RM had received a fait accompli by email.

PL did not argue with the importance of the Bar's presence in Brussels, only questioned the value of an under-utilised office space costing £22k, and how much of our consultant's time we needed to engage to the extent that we did currently.

Stephen Moriarty QC made the point that the Brussels office, and the work of the Bar's European consultant, was of importance not just to barristers who specialised in European law, but also to the Commercial Bar more widely; and that it would be a very regrettable step to close it.

A suggestion was raised that the Bar Council could look into sharing an office. RA wryly put forward that, as he understood it, rooms could be rented by the hour in Brussels. RA said that the message should be to pay the MSF, then we would be able to fund the Brussels Office.

On behalf of Stephen Nathan QC, Chairman of the London Common Law and Commercial Bar Association, who had left the meeting, NL said that he did not support this cut. There might be scope for changes, but not like this.

RM said that the proposed cuts represented a 40% reduction in the EC's budget, their £139k budget last year being reduced to £79k. Directing members to the EC's expenditure, shown at page 132 of the Agenda, he said the figures were evidently tiny.  The EC was a small expenditure committee punching well above its weight. Unlike other Representative committees, £139k included the costs for staff and premises. The other committees had huge overheads, as shown on page 135, but there were none for the EC. The sum of £22k for an office was a small cost, because it was for only one room. However, these premises were shared with important Bars, and having a presence in that building was very useful. Giving it up would send the wrong message to those the Bar of England and Wales dealt with in Europe. When the EC's consultant had estimated her use of the office at 60 days, this was a rough guess extracted from her at a meeting. However, even 60 days represented 40% of her time and did not detract from the office's utility. If £22k was really too much to afford, then they could look into sharing the space to bring it down to £11k, a tiny amount of money. However, they would not be able to find a sharer overnight, and urged the Bar Council to continue to rent the office for the forthcoming year whilst the EC looked for someone to share with. The proposal to reduce the consultant's days to 115 was unjustified, and would impact on the amount of work she could do for the Bar. However, she had stated that she would accept a 20-day cut, provided that she was given support from staff in London for administrative tasks such as Brussels News. This would give a workable budget of £116k, and RM urged members to approve that figure.

PL called the discussion to a close. PL and ARM noted the EC's position and would take it into account when reviewing the figures.

In the absence of an objection, the Bar Council agreed ARM's proposed 3 - 5% increase in the PCF. PL also advised that there would be a further review during 2012 as to how the PCF was raised.

11. Any Other Business

The AG thanked PL for his 2011 Chairmanship. He had seen the way these meetings were conducted over the course of the year, and there was a debt of gratitude to be paid to PL, and also to ARM.

PL said that he had purposefully left ARM's name until the end of the meeting in his list of those whom he wished to thank. ARM had generously stayed on to undertake a fourth year as Treasurer, a truly thankless job. Only rarely would previous Treasurers speak to Bar Council, and when they did so people fell asleep. Not so with ARM, as the meeting was gripped with anxiety whenever he rose to address the meeting. His diplomacy was infamous. Under his Treasurership we had resolved a pension problem that would have defeated most. He was leaving us on a firm footing financially. PL presented ARM with a token of thanks from Bar Council members, a 1913 silver sovereign case, and a 2011 gold half-sovereign to put in it.

MT in turn had a few words to say about PL and his chairmanship. MT had watched PL grow in his role. NG had been a hard act to follow, but it was NG who had encouraged PL to step forward. PL had shown leadership, resilience and integrity in a time of extreme pressure externally. In undertaking the role he had worked tirelessly to go the extra mile when others would have given up. He continued to communicate the message of the Bar to Government and business, here and internationally, particularly but not exclusively in relation to publicly funded work. He recalled a meeting with the LC and the Parliamentary Under-Secretary of State for Justice, to which the LC had invited Ministry of Justice members to talk about international work. The attendees looked on wistfully as PL barraged the LC with the concerns of the Bar for the entirety of the meeting.

Only the week before, PL had spoken at the International Bar Association Conference in Dubai on the independence of the judiciary and initiatives for both the public and private Bars. So enthusiastic were international Bars to meet with PL that one might have been excused for thinking they were bunny boilers, and PL would know the significance of that remark. Peter "Airmiles" Lodder QC had been a true ambassador for the Bar both here and abroad and we were grateful to him for his leadership. MT also wished to thank him personally for his wisdom, patience, kindness, and lessons in sartorial elegance. MT presented PL with a gift on behalf of Bar Council members, an 1879 sterling silver pocket corkscrew. PL and ARM were both also given a bottle of 1998 Chateau Grand Puy Lacoste.

PL thanked Bar Council members for all of their support. He said that he could not think of a better thing to do as a barrister than to lead the Bar.

12. Date of Next Meeting

The Inaugural meeting for the 2012 Bar Council would be held at 7 pm on Monday 5 December 2011, in the Bar Council offices.