Present
John Randall QC (Acting Chairman)
Professor John Bell QC (Hon)
Professor Hugh Brayne
Lady Elizabeth Finsberg
Mr Jonathan Goldsmith
Mr John Hannam
Ms Karen Mackay
Mr David McIntosh
Mr Richard Moorhead
Mr John Randall
Mr Simon Sapper
Mr Alan Street
Ms Peta Sweet
Mr John Young
Mr Mark Cooper }
Ms Louise Joyce } Department for Constitutional Affairs (DCA)
Mr Adam Attree }
Item 1: Apologies were received from:
1. Apologies were received from Lord Justice Potter, Mr Acton Davis QC and
Dr Weait.
Item II: Minutes of the last meeting
2. The minutes were approved.
Item III: Matters Arising
Professor Hilary Sommerlad's research on the training and regulation
of those providing legal services
3. Mr Randall QC informed the Panel that Professor Sommerlad was due to
meet a number of members on 17 May, in order to discuss her research project.
Mr Moorhead, Ms Sweet, Professor Brayne and Mr Hannam would be attending
the meeting.
Action point: any other Panel members wishing to attend the meeting to contact Secretariat.
Item IV: ILEX application for increased advocacy rights (Referral
No 3/2002)
4. Mr Randall QC reminded members that on 30 March, the Chairman had written
to Mrs Burleigh, Secretary General of ILEX. He had confirmed to her that,
on the basis of the panel's understanding that ILEX's application
was to be re-submitted, and that ILEX wished the Panel to suspend consideration
of the matter until a new referral was made by the Secretary of State, the
Panel would do so. Mrs Burleigh's reply dated 13 April had said nothing
to contradict that understanding. Mr Randall QC noted that it was unlikely
that a new referral would be made to the Panel until May or June.
5. Mr Goldsmith noted that there was a lack of information about the standards to be applied by the Panel when considering applications from organisations. Mr Randall QC suggested that this issue should be discussed at the Panel's next meeting, when there was likely to be at least one other item bearing on the same question [N.B. see paragraph 32, action point (ii) below]. The Panel agreed.
Item V: Parliamentary Question from Lord Goodhart QC
6. Mr Randall QC told members that there had been no known follow up to
the Parliamentary Question tabled by Lord Goodhart QC (answered on 31 March
2004).
Item VI: The DCA led programme on regulation and competition
7. Mr Cooper gave the members a report on the DCA led programme on regulation
and competition. He explained that the DCA would not be making a formal
response to Sir David Clementi's consultation paper. However, officials
were building a body of knowledge about the review so that the DCA would
be able to respond quickly to Sir David Clementi's recommendations.
Mr Cooper said that, as part of the DCA led programme, he was working on
quick wins in those areas that fell outside the remit of Sir David Clementi's
review and that could be dealt with by way of secondary legislation or regulatory
reform orders. He would be meeting members of the review team to identify
these areas. Mr Cooper said that he was currently working on the commencement
of sections 54 and 55 of the Courts and Legal Services Act 1990 (CLSA),
to allow new providers of probate services to enter the market. He hoped
these sections would be implemented in the next three months.
8. Mr Goldsmith asked what action was being taken with regards to competition. Mr Cooper said that this would become clearer once he had met the review team. He stressed that the DCA was anxious to ensure that there was more open competition.
9. Mr Randall asked how the DCA would proceed with implementing section 55 of the CLSA in the absence of Sir David Clementi's final recommendations regarding the regulatory scheme. . Mr Cooper said that he was preparing guidance for those professional bodies who may seek recognition under section 55. In terms of any recommendations made by Sir David, Mr Cooper said that it was unlikely that they could be implemented for two or three years
10. Mr Moorhead asked about the level of interest in the DCA led programme, including implementation of sections 54 and 55 of the CLSA. Would organisations apply now, or would they be more inclined to await the outcomes of the Clementi review? Mr Cooper said that in respect of probate, it was predicted that 5% of the market share would go to other providers, which would amount to approximately £40 million of business. Interest in other areas would depend on how attractive they were.
11. Mr Randall endorsed the point raised by Mr Moorhead. Organisations might take the view that the start up costs (for instance, in establishing a complaints handling scheme) were too great, if there was a risk that they would lose their status on the implementation of Clementi's recommendations. Mr Cooper said that the DCA would consider this point.
12. Mr McIntosh noted that the Clementi review was not considering the regulation of the un-regulated providers of legal services, such as claims assessors. Mr Randall QC suggested that this was an issue for consideration by the DCA within its programme. Mr Moorhead said that there were two issues to be considered: the un-regulated sector and the question of what constituted legal services.
Action point - Secretariat to note the view of the Panel that the DCA should consider the un-regulated legal sector and the question of what constitutes legal services, as part of the DCA led programme.
13. Mr Sapper suggested that it would be beneficial to have a monthly report on developments in the DCA led programme while it was underway, and asked that copies of any statutory instruments be circulated. Mr Randall QC agreed.
Action point - future agendas to include an up-date on any material developments in the DCA led programme (within matters arising).
<p>Item VII: Sir David Clementi's review of the legal services framework15. The Panel appointed Mr Sapper to act as Chair of the Professional Regulation and Organisation working group for the purposes of co-ordinating the production of draft responses to the Clementi consultation paper for the May meeting of the Panel. Mr Randall QC asked him to convene 1 or 2 meetings of the working group before the next Panel meeting to undertake this work, given the time pressure. [N.B. after the Panel meeting had ended, Mr Sapper and the members of the working group agreed to exchange e-mails instead of meeting]
Action point - the Professional Regulation and Organisation working group to produce a draft response for discussion at the Panel's next meeting.
Item VIII: Work Programme 2004/2005.
16. Mr Randall QC informed members that the Panel's draft programme
of work 2004/2005 had been approved at the last meeting (on 29 March). However,
this document would require amendment in the light of the decision provisionally
taken regarding a collective response to Sir David Clementi's consultation
paper. Professor Brayne indicated that he had some typographical amendments.
No other amendments were suggested by members.
Action point - Secretariat to produce a second draft work programme 2004/2005.
Item IX: The National Occupational Standards for Legal Advice Project
17. Mr Hannam noted that there were two broad strands to the project:
18. A Standards Steering Group was involved to represent the private, public and not for profit sectors. Mr Hannam said that the aims of the project were to help develop standards, to provide a benchmarks and to help training. In particular, it was hoped that the project would help with the development of qualifications, such as foundation degrees.
19. Mr Hannam explained that a workforce survey was currently underway, its aim being to scope the nature of the workforce and their employment. Much of the research would be carried out by an independent organisation. This would be followed by an attitude survey and a survey of the organisations that employed people in the legal advice sector. Mr Hannam said that the project was not about finding an alternative to the quality mark, but aimed to consider personal competences.
20. Mr Randall QC asked about the timetable for the project. Mr Hannam said that it was a complex project. It was expected to conclude in 2006. When completed, it would give a detailed view of the characteristics of the legal advice sector.
21. Mr Young asked about the parenthood of the project. Mr Hannam said that the main parents were the Legal Services Commission (LSC), who had set up the project in an attempt to find out more about the characteristics of the legal advice sector. The LSC was the project manager.
22. Mr Sapper asked who would be responding to the workforce survey. He questioned whether the list of those being asked to respond was comprehensive.
Action point - Mr Hannam to provide Secretariat with a list of the organisations who were being asked to respond to the survey, to be circulated to Panel members.
23. Professor Brayne asked whether the project would look at filling the regulatory gaps. Mr Hannam said that nothing had been decided as yet. The concern had been that the quality mark was not really a mark of quality. The LSC was keen to have the means of measuring the effectiveness of individuals. Increased regulation might emerge, but it was not the main aim of the project.
24. Ms Mackay asked about the definition of the "legal advice sector". She suggested that many staff in Citizens Advice Bureaux may feel that they did not give legal advice. She was also curious about the areas of law being considered in the project. Was family law being considered? Mr Hannam said that family law was being considered. The attempt was to be as comprehensive as possible and to consider any area of social welfare law or civil law that could be funded by, for example, legal aid, charities or Citizens Advice Bureaux.
25. Ms Mackay asked what was included within the definition of the "legal advice sector". Mr Hannam replied that the definition included anyone providing independent legal advice.
26. Mr Randall suggested that the project would benefit from considering the work of the Sector Skills Councils (SSCs). He raised the concern that such a free-standing project lacked the necessary support of a permanent organisation, which would, for instance, enable data on the labour market force to be updated. Mr Randall suggested that the definition of the legal advice sector was important. It was not enough to rely upon self-identification, as many people or organisations would not self-identify. Mr Randall noted that employer ownership of the project was vital. Employers would have to be engaged and committed. SSCs had employer-led structures. Mr Randall suggested that the project would benefit from adopting a similar approach.
27. Mr Hannam said that the SSCs had been involved in the project, in an attempt to create an Advice Sector Skills Council, however not enough was known about the advice sector. He agreed that it was important to involve employers and said that the majority of employers were already involved. There was also an attempt to involve employers as part of the process of mapping.
Action point - Mr Hannam to notify Secretariat of any points in the National Occupational Standards for Legal Advice Project that would be useful for the Panel to consider.
Item X: The Association of Law Cost Draftsmen (ALCD) (Referral
No7/2003)
28. Mr Randall QC reminded members that one issue about the ALCD's
application had been the question of whether ALCD members should have rights
of audience or rights to conduct litigation in "wasted costs"
proceedings. This matter had been raised at the working group's meeting
with ALCD representatives, who had expressed the view at the time that its
members would not wish to get involved in the question of entitlement to
wasted costs (though would wish to be able to act in the quantification
of such an order, like any other costs order). Following the meeting, the
ALCD had submitted a revised 'statement of rights sought'. However
this had not included any revision which excluded the first stage of "wasted
costs" proceedings. There was also a possibility that the scope of
the rights sought by adopting a block reference to proceedings under Parts
43-48 of the Civil Procedure Rules might be unintentionally wide in other
respects too. Mr Randall QC said that a draft letter to the ALCD in which
these issues were raised, and inviting them to put forward any further revisions
to their 'statement of rights sought' which they wished, had
only very recently been drafted by the secretariat, and that he would amend
and approve it today in order that it could be sent to the ALCD.
29. Mr Randall QC suggested that once the ALCD replied to this letter, the
revised statement of rights should be referred by the Secretariat to the
DCA's legal group for advice on the scope and effect of the rights
sought. Once such advice had been obtained, further comments should then
be sought from Chief Master Hurst, the Senior Costs Judge, who had already
assisted the Panel on the matter. Once this process had been completed,
the matter would be ready to be further considered by the Panel's
working group. The Panel agreed that the matter should be progressed in
that way, and expressed the view that, when the ALCD's response had
been received, the Secretariat should proceed to seek such legal advice,
and then to write again to Chief Master Hurst, without waiting to report
further to the Panel or its working group in the meantime.
30. Mr Randall QC said that it was disappointing that consideration of the application had been delayed (largely due to Secretariat). Ms Mackay suggested that it would be helpful if the letter to the ALCD indicated that the Panel considered that the application would be beneficial, once properly re-formulated. Ms Mackay agreed that, given the limited resources available to an organisation of the size of the ALCD, it would be helpful to gain legal advice from the DCA.
31. Mr Randall QC informed members that would be abroad on a 6-month sabbatical from the Bar, with effect from early July (see also paragraph 34 below). He would therefore be unable to sit on the working group for that period. Mr Randall QC said that it seemed unlikely that the referral of the ALCD application would be completed before early July, and expressed the view that it was important that the working group should include a barrister. He therefore proposed that Mr Acton Davis QC should be added to the working group. Mr Acton Davis QC had indicated that he would be content to be so. The Panel appointed Mr Acton Davis QC to be an additional member of this working group.
32. Professor Brayne asked whether the DCA could process and offer informed non-binding legal advice to organisations submitting such applications in future. Ms Mackay raised concern about obtaining legal advice before Panel members had considered the application and had the opportunity to meet the applicants in order to gain a greater understanding of the aims of the application and of the organisation. Mr Randall QC asked Mr Cooper to advise the Panel about how the DCA processed applications and deal with applicants at the Panel's meeting on 17 May.
Action points -
(i) Upon receipt of a response from the ALCD concerning questions regarding
its revised statement of rights, Secretariat to seek legal advice and subsequently
the views of Chief Master Hurst.
(ii) Secretariat to advise the Panel on how the DCA processes applications
and deals with applicants for authorised body status, including the feasibility
of the DCA obtaining non-binding legal advice and/or offering more general
advice on proposals prior to the applications being submitted.
Item XI: Any Other Business
Application by the Bar Council to amend the provisions of the Consolidated
Regulations relating to "external training" (Referral No. 1/2004)
33. The Bar Council's application to amend the provisions of the Consolidated
Regulations relating to "external training" was tabled. Mr Randall
QC said that elements of practising pupillage included "external training".
The proposed changes would mean that "external training" could
take place only in the second half of pupillage, prior to full practise.
Action point - Secretariat to prepare initial draft advice.
Item XII: Absence on sabbatical
34. Mr Randall QC reported that his absence on sabbatical at the University
of New South Wales would mean that he would be unable to attend 5 successive
meetings of the Panel (July and September to December 2004). In those circumstances
he had written to the Chairman and to Mr Lammy MP offering to tender his
resignation from the Panel if asked to do so. However both had indicated
that they would wish him to continue as a Panel member and he would therefore
do so.
Item XIII: Secretariat support to the Panel
35. Mr Randall QC introduced and welcomed Mr Attree, a new member of Secretariat.
Item XIIII: Date of next meeting
36. The next meeting will be held at 10:30am on Monday 17 May 2004, 1st
Floor Board Room, Steel House, 11 Tothill Street, London