Minutes of the Fiftieth Meeting of the Legal Services Consultative
Panel ("The Panel") in the First Floor Board Room, Steel House,
11 Tothill Street, London
on 17 May 2004
Present
Lord Justice Potter (Chairman)
Mr Jonathan Acton Davis QC
Professor Hugh Brayne
Mr Jonathan Goldsmith
Mr John Hannam
Ms Karen Mackay
Mr Richard Moorhead
Mr John Randall
Mr John Randall QC
Mr Simon Sapper
Mr Alan Street
Mr John Young
Ms Louise Joyce } Department for Constitutional Affairs
(DCA)
Mr Jason Coombs }
Apologies
- Apologies were received from Professor Bell, Mr McIntosh, Ms
Sweet, Dr Weait and Mr Cooper.
- The Chairman noted Lady Elizabeth Finsberg's
decision to resign from the Panel.
- Mr Sapper asked whether, in view of Lady Finsberg's
resignation, a new lay member would be recruited to the Panel. Ms
Joyce said that consideration would have to be given to the resources
implications of conducting a recruitment campaign, particularly as other
Panel members might be subject to re-appointment at the end of the year.
Advice on this issue would be sent to Ministers shortly. Mr Sapper
pointed out that the issue was not only the loss of a lay Panel member,
but there was also the need to consider the gender balance on the Panel.
Action point: Secretariat to keep the Panel informed of recruitment
plans.
Minutes of the last meeting
- Professor Brayne noted a typographical error in the
minutes of the last meeting. Subject to this amendment, the minutes were
approved.
Matters arising
- Timetable for revision of the Law Society's
rule-book
- The Chairman reminded members that the Law
Society was currently consulting on "Rules for the 21st Century",
its new set of professional conduct rules. The consultation period would
close on 12 July. The draft rules would then be referred to the Law Society's
Standards Board and subsequently to the Law Society Council. It was not
anticipated that the rules would be referred to the Secretary of State
for approval until September, at the earliest.
- The Chairman said that the new rules might generate
a large amount of work for the Panel. However, in accordance with the
provisions of Schedule 4 to the Courts and Legal Services Act 1990 (CLSA),
not all the rules would need to be referred to the Panel by the Secretary
of State.
- Ms Mackay said that it would be helpful if Secretariat
considered the Law Society's current consultation paper, in order to avoid
the need for the Panel to re-tread issues at a later date. Mr
Randall suggested that the amount of re-drafting that would have
an impact on matters of principle would be small. It would be helpful
if the only issues referred to the Panel concerned matters of principle,
rather than matters of drafting. Ms Mackay agreed that
many of the revisions would be limited to drafting, although she noted
that there were some significant changes (such as the proposals regarding
referral fees).
The DCA led programme on regulation and competition - update from
Secretariat
- Ms Joyce said that there had been no significant
progress on the DCA led programme since the update given by Mr
Cooper at the last Panel meeting. However, it was anticipated
that by the end of June, the guidance for those organisations seeking
authorised body status under the provisions of sections 54 and 55 of the
CLSA would be finalised. It was also hoped that agreement would be reached
on the complaints handling mechanisms necessary for those organisations
seeking to provide probate services.
- Mr Randall reiterated the point he had raised at the
Panel's last meeting, asking whether organisations would seek to apply
under the provisions of sections 54 and 55 of the CLSA, when there was
a risk that they would lose their status on the implementation of Clementi's
recommendations? Mr Randall QC said that, as recorded
in the minutes of the Panel's last meeting, Mr Cooper
had assured members that the DCA would consider this issue (Paragraph
11 of the minutes of the Panel's meeting of 26 April 2004). Ms
Joyce said that Mr Cooper was due to meet members
of the Clementi team in early June and that this issue would be considered
in the light of this meeting.
Action point: Secretariat to keep the Panel informed of plans
to implements sections 54 and 55 of the CLSA, in the light of the Clementi
review of legal services.
- The National Occupational Standards for
Legal Advice Project
- The Chairman said that at the last meeting,
Mr Hannam had given members an up-date on the National
Occupational Standards for Legal Advice Project. Mr Hannam
said that although he had subsequently made enquiries as to the nature
of the organisations who had been asked to respond to the Project's workforce
survey, he had been unable to obtain this information. The Legal Services
Commission (LSC) and the project contractor, Cubiks, had said that this
information could not be disclosed due to the Data Protection Act 1998
(DPA) and issues concerning confidentiality.
- Mr Sapper said that he was concerned that barriers
were being placed which could prevent the Panel from understanding both
the Project's aims and the recommendations contained in any report finally
produced. Mr Randall agreed. National occupational standards
could provide a foundation for qualification, which could be cited by
legal services providers in future applications to the Panel. It was therefore
important that the Panel had a clear understanding of all aspects of the
Project. Mr Randall QC expressed surprise that there
were any DPA issues that would prevent disclosure of information concerning
those organisations that had been sent the workforce survey.
Action point - Secretariat to write to the LSC and Cubiks, to
request the details of those organisations being asked to respond to the
workforce survey.
- Ms Mackay said that there was a general lack of clarity
about the boundaries of the Project. She suggested that it would be helpful
if a Cubiks representative attended a meeting of the Panel, in order to
address members' concerns.
Note: Following the meeting, Ms Joyce spoke to Ms Yve Schelhaas,
Development Manager at the LSC. Ms Schelhaas advised that the aims of
the workforce survey are to obtain a profile of those providing advice,
rather than to form any background as to standards. The survey has been
sent to approximately 20,000 individuals, rather than to organisations.
The identity of the individuals concerned is known to Cubiks, but not
to the LSC. Individuals have been guaranteed confidentiality, as the survey
requests personal information (for instance, details of salaries and career
progression).
Ms Schelhaas has offered to attend the July Panel meeting (together
with a Cubiks representative) in order to give a project up-date and to
respond to any questions or concerns. Thereafter, Ms Schelhaas will provide
quarterly, written up-dates on the Project.
Applications under Schedule 4 to the CLSA: DCA procedure and standards
- The Chairman reminded members that at the last meeting,
Secretariat had been asked to provide advice on how the
DCA processed applications made by organisations under the provisions
of Schedule 4 to the CLSA. In particular, Secretariat had been asked to
consider the feasibility of the DCA obtaining non-binding legal advice
on proposals, prior to applications being submitted to the Secretary of
State.
- The Chairman said that Secretariat
had subsequently advised members that the Department's view was that the
DCA should resist providing legal or policy advice to any professional
body prior to an application being submitted to the Secretary of State.
The concern was that to provide such advice might influence applications
from independent bodies before they were submitted to the Panel and the
Designated Judges. However, there was no objection in principle to the
possibility of the Panel agreeing a set of standards to be applied when
considering applications.
- Mr Goldsmith suggested that production of a set of
standards could assist the Panel, as well as those organisations intending
to submit applications. Professor Brayne said that the
DCA could still assist applicants before an application was referred to
the Panel. The DCA could, for instance, ensure that applicants were aware
of the need to provide evidence in support of claims made within any applications.
Such assistance would not involve officials at the DCA pre-judging applications.
- The Chairman established a working group to consider
the issue of the standards to be applied when considering applications.
Professor Brayne, Mr Goldsmith, Ms Mackay, Mr Randall
and Mr Street were invited to join the group.
The Standing Conference on Legal Education
(feedback from the working group's meeting on 26 April)
- The Chairman informed members that Secretariat had
just circulated Referral No. 2/2004 - The Legal Profession: Entry, Retention
and Competition (see paragraph 24, below). The Chairman
noted that the issues raised within the referral would be relevant to
the Standing Conference on Legal Education (the Conference).
- The Chairman invited Professor Brayne
to give feedback from the working group's discussions about the Conference.
Professor Brayne said that the key decision had been
that the Conference should look at competence standards in legal education
and training. To that end, working group members had started approaching
organisations to establish whether representatives would agree to speak
at the Conference.
- Mr Randall confirmed that Ms Julie Swan
of the Law Society had agreed to take part in the Conference. Mr
Randall pointed out that in its training framework review, the
Law Society used the term "outcomes" rather than "competences".
He suggested that an outcomes-based approach could be relevant when considering
Referral No. 2/2004. The Chairman asked whether outcomes
in the work place would be of interest to academic delegates attending
the Conference. Professor Brayne suggested that it was
legitimate to ask academics to consider the issue.
- Mr Randall said that it was proposed that the Conference
would take place on the afternoon of 29 November. The Chairman
questioned whether half a day would allow sufficient time for delegates
to discuss all the issues raised at the Conference. Mr Sapper
suggested that this issue should be kept under review.
Application by the Bar Council to amend the provisions of the Consolidated
Regulations relating to "external training" (Referral No. 1/2004)
- The Chairman said that Bar Council proposed to amend
the Consolidated Regulations so as to require the completion of the non-practising
pupillage before commencement of any period of practising pupillage, including
"external training" (such as work in a solicitor's firm). Initial
draft advice had been produced by Secretariat. The Chairman
asked members for their comments.
- Professor Brayne asked whether the issue of equal opportunities
had been considered. Mr Randall QC said he could not
see any equal opportunity issues. There was no obligation for pupils to
undertake a period of "external training". The proposals represented
an improvement to existing arrangements. The Chairman
agreed, adding that the proposed changes would increase consumer protection.
Subject to the draft advice being amended to amplify this point, the advice
was approved.
Sir David Clementi's review of the Legal Services Framework
- The Chairman reminded members that it had been agreed
that the Professional Organisation and Regulation working group would
produce a draft response to Sir David Clementi's consultation paper. The
Chairman thanked Mr Sapper for chairing the
working group and Mr Goldsmith for his work in producing
the draft response. Panel members then discussed the draft response and
a number of amendments were made.
Action point: Secretariat to produce an amended draft response
for final approval, with a view to its submission to the Clementi team
by midday on 4 June.
Any other business
- The Legal Profession: Entry, Retention
and Competition (Referral No. 2/2004)
- The Chairman deferred discussion on this
item until the next meeting.
Date of Next Meeting
- The next meeting will be held at 10:30am on Monday 28 June
2004, Meeting Rooms 1 & 2, 8th Floor, Selborne House, 54 Victoria
Street, London.
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