Present
Lord Justice Potter (Chairman)
Mr Jonathan Acton Davis QC
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 John Randall QC
Mr Alan Street
Ms Peta Sweet
Dr Matthew Weait
Mr John Young
Mr Mark Cooper } Department for Constitutional Affairs (DCA)
Ms Louise Joyce }
Item I: Apologies
1. Apologies were received from Mr Sapper.
Item II: Minutes:
2. Mr Randall QC suggested a number of textual amendments to reflect discussions at the 15 December meeting. Professor Brayne suggested a textual amendment regarding his presentation on the Standing Conference on Legal Education during the 26 January meeting. Subject to these amendments, both sets of minutes were approved.
Item III: Matters arising
Secretariat support to the Panel
3. The Chairman informed members that there had been a number of recent
changes in the Department for Constitutional Affairs (DCA). Mr Mark Cooper
had replaced Mr Nigel Reeder as Secretary to the Panel. Mr Cooper introduced
himself to Panel members. He said that in addition to leading on professional
regulation policies, he had also taken on responsibility for competition
issues. Mr Cooper said that he was in the process of identifying means
of giving the Panel a more dedicated Secretariat.
4. The Chairman told members that it had also been confirmed that Ms Anita Bharucha had been appointed as the new Head of Legal Services Development Division (LSDD). She was due to take up post in mid-May. Mr Paul Jenkins, who had been dealing with the Panel, had now left the DCA on transfer to the Department for Work and Pensions. Mr Neil Ward, head of Judicial Appointments Directorate, had now taken responsibility for LSDD.
Item IV: Professor Hilary Sommerlad's research on the training
and regulation of those providing legal services.
5. The Chairman reminded members that research into the training and regulation
of those providing legal services was currently under way, having received
the approval of Ministers at DCA. Professor Hilary Sommerlad was now making
progress, although there had been initial difficulties in finding a researcher
to help with the literature review. The team had been in contact with
the national offices of all the major contracted providers and would be
organising preliminary meetings with them. They were also working with
CLS partnership managers in Leeds to identify the sample for the field-work.
6. Professor Sommerlad had asked to meet some Panel members to discuss
the research. The Chairman asked Mr Moorhead and Ms Sweet to attend the
meeting. having been particularly involved in drafting the initial research
proposal. The Chairman asked that any other Panel members who wished to
attend the meeting to inform Secretariat.
Action point - Secretariat to liaise with Research Unit to agree a date for the meeting between Panel members and Professor Sommerlad.
Item V: ILEX application for increased advocacy rights (Referral
No 3/2002).
7. The Chairman said that at the last Panel meeting, members had discussed
the way forward in the light of correspondence received from Mrs Diane
Burleigh, Secretary General of ILEX. Members of the Panel's working
group had subsequently met ILEX representatives on 9 March. At the meeting,
ILEX had confirmed that an amended application would be submitted, if
possible, by 1 May 2004.
8. The Chairman asked whether, as indicated in the minutes of the 9 March meeting, ILEX had written to the Secretary of State to set out its intentions. Mr Cooper said that the letter from ILEX had not arrived.
Secretariat note: following enquiries made subsequent to the Panel meeting, ILEX provided a copy of Mrs Burleigh's letter to the Chairman of 15 March (at Annex A). The Chairman's response of 30 March is attached at Annex B.
9. Mr McIntosh, Mr Randall, Mr Randall QC, Ms Sweet and Mr Street gave feedback from their meeting with ILEX. Mr Street confirmed that the meeting had been helpful. It was clear that misunderstandings had arisen as a result of correspondence from officials in the DCA. This correspondence had given ILEX the impression that because ILEX already had limited rights of audience, there was unlikely to be any major problem with the application for extended rights.
10. The Chairman informed members that Mrs Burleigh and Mr Owens, the President of ILEX, had recently met Mr David Lammy. Mr Cooper reported that at this meeting Mr Owens had been positive about the 9 March meeting and had confirmed that ILEX would submit an amended application.
11. Mr Goldsmith raised the question of the standards to be applied by the Panel when considering such applications. He asked whether there should be one absolute standard for all legal bodies, or whether there should be standards from which the consumer could choose (for instance, between a cheaper and a more expensive advocate). Mr Randall suggested that there were two separate issues regarding standards. There could be a number of different standards of performance and customers could choose between them in the market place. A separate issue was that of the quality assurance standards necessary for good, effective regulation. Whatever standards of performance regulatory bodies were setting, they should be able to define what practitioners had to know, the levels of training required, the quality of the performance of those providing that training, as well as ensuring that students were being assessed against a proper standard.
12. Mr Moorhead suggested that when considering applications, the Panel would be assisted by the ability to make comparisons with how things were actually done in other parts of the legal profession. Lady Finsberg asked whether the DCA issued any guidance on standards for those intending to make applications that the Secretary of State would later refer to the Panel. Ms Joyce said that guidance was available for organisations intending to apply under the provisions of Schedule 4 to the Courts and Legal Services Act 1990. She confirmed that copies of this guidance would be circulated to Panel members.
Item VI: The Standing Conference on Legal Education
13. The Chairman said that some members of the Legal Education and Training
working group had started to consider topics for the next Conference,
which was due to take place in June. Professor Brayne said that it would
be helpful to consider the tone and purpose of the Conference, and in
particular, how the Conference could assist the work of the Panel. He
suggested that a closer linkage between the Panel's work programme
and the Conference might be helpful.
14. Ms Sweet raised concerns about managing expectations. It would not be helpful to raise issues as being on the Panel's work programme when there were no resources to deal with them. She suggested that the Panel could use the Conference as a forum to enable the Panel to get access to research, which could then be fed into the Panel's work. Ms Sweet said that possible agenda items had been identified, however she asked whether the June Conference should be postponed in order to allow time for more detailed thought to be given to the matter. Mr Randall concurred with this approach. He stressed the need for a clear understanding as to both the purpose of the Conference and its benefits, from the perspective of the legal profession and academia, as well as that of the Panel.
15. Dr Weait said that the Conference played an important role as a mediating institution between universities and the professional bodies. It was a rare forum in which debates could be raised by both parties, through a neutral Chairman, on important issues, such as the content of the under-graduate qualifying law curriculum. Mr Goldsmith agreed. Two important issues in relation to training were the relationship with competition and the pressure for harmonisation of training across Europe.
16. The Chairman agreed that it was important to set a meaningful and structured purpose for the Conference. Professor Bell said that a number of issues that would be of interest to the Conference, such as funding, would not be resolved before June. However, there should be clarification by the autumn. Ms Sweet suggested that, in all the circumstances, the Conference should be postponed until November. The Chairman agreed.
Action points: (i) members of the Legal Education and Training working group to meet in April or May to discuss the purpose of the Conference and possible agenda items; (ii) Secretariat to wrote to delegates informing them of the postponement of the Conference.
Item VII: Work programme 2004/2005 and summary of work 2003.
17. The Chairman said that drafts of the work programme and the summary
of work had been circulated and asked members for any comments. The Chairman,
Professor Brayne, Ms Mackay, Mr Moorhead, Mr Randall and Mr Randall QC
made a number of textual and typographical amendments.
Action point: Secretariat to amend the draft work programme 2004/2005 and summary of work 2003 and resubmit to the Chairman for approval.
Item VIII: Sir David Clementi's Regulatory Review of Legal
Services
18. The Chairman referred members to Sir David Clementi's recently
published consultation paper. He suggested that there were two key aspects
for the legal profession: the regulation issue and the question of multi-disicplinary
partnerships/legal-disciplinary partnerships.
19. Ms Mackay said that the consultation paper mentioned the Panel as one of the existing regulators. She suggested that the Panel might wish to start considering its role in relation to the review, rather than waiting until the report was published at the end of the year. Mr Goldsmith agreed, and suggested that the Panel might have a role in responding to the consultation paper in respect of the proposed regulatory schemes. Mr Young suggested that when designing regulatory systems, the real concern was whether the design would work or not. The Panel could advise on whether the regulatory models were workable in real life. Mr McIntosh said that due to the size of the Panel, it could prove difficult to agree a collective response within the required timeframe. He suggested that, rather than responding to the consultation paper, the Panel had a role in dealing with the consequences and outcomes of the report.
20. The Chairman informed members that the deadline for responses to the consultation paper (4 June) would not be extended. Due to the time constraints and the size of the Panel, it would prove difficult to submit a collective response. The Chairman concluded that the Panel was not, in any event, entitled to submit a collective response to the consultation paper. It had not been included as an item within the Panel's work programme and Ministers had specifically told the Panel not to respond. The Chairman reminded members that they could respond to the paper as individuals.
Item IX: The Association of Law Costs Draftsmen (Referral 7/2003)
21. The Chairman said that in November 2003, a meeting had taken place
between the working group and representatives of the Association of Law
Costs Draftsmen (ALCD). At the meeting, it was agreed that the ALCD would
not be seeking rights of audience in respect of wasted costs orders. However,
this had not been taken into account in the revised statement of rights
sought that had subsequently been submitted by the ALCD. It had been agreed
that a letter would be sent to the ALCD reminding representatives of the
principle that had been accepted at the meeting and asking if they would
like to consider amending the revised statement. The Chairman said that
due to difficulties in the Secretariat, a letter had not been drafted.
However, a draft letter would be sent to Mr Randall QC for approval by
2 April.
22. The Chairman said that Mr Charles Plant had been a member of the working group considering the ALCD application. In view of Mr Plant's retirement from the Panel, the Chairman invited Mr McIntosh to join the working group.
23. The Panel then discussed the disclosure of minutes of meetings held by working parties considering individual applications. It was agreed that good minutes would be forwarded to Chair of the appropriate working party as soon as possible after the meeting, and would then be automatically supplied to all the parties concerned as an approved document.
Action point: Secretariat to draft a letter for approval by Mr Randall QC by 2 April.
Item X: EC report on Competition in Professional Services and
the EU Services Directive
24. The Chairman invited Mr Goldsmith to introduce discussion on the EC
report on Competition in Professional Services and the EU Services Directive.
Mr Goldsmith said that both initiatives were aimed at liberalising all
professions, including lawyers. In terms of the UK, the particular services
being considered by the initiative had already been liberalised. Mr Goldsmith
suggested that in terms of the Services Directive the biggest impact was
the move towards EU regulation of the profession, with a EU wide code
of conduct being drawn up and adopted nationally. In terms of competition,
the initiatives concerned entry requirements and liberalisation of the
area of reserved rights. This could provide the Panel with interesting
background to take into account when considering applications.
25. The Chairman asked Mr Goldsmith about the views on the Continent regarding multi-disciplinary partnerships (MDPs). Mr Goldsmith said that MDPs existed in a number of EU member states. The competition authorities were in favour of MDPs, but the legal profession was more resistant to them. Mr McIntosh suggested that the initiatives were good news for the legal profession in the UK. There was an "open door" policy on establishment rights and re-qualified rights in the UK, however this was not reciprocated elsewhere in the world. Developments in Europe could therefore help the UK legal profession, particularly solicitors.
Item X1: Any other business
26. It was noted that a written Parliamentary Question about the Panel
had been tabled by Lord Goodhart QC.
27. The Chairman established the Professional Organisation and Regulation working group to consider issues arising from Sir David Clementi's review. Mr Acton Davis QC, Mr Goldsmith, Mr McIntosh, Mr Sapper (in his absence), Mr Street and Mr Young were invited to join the group. The Chairman invited Mr Randall to join the Education and Training working group. Members of the Panel who took up post in January 2004 were invited to inform Secretariat if they wished to join any of the other Panel working groups.
Item XII: Date of next meeting
28. The next meeting will be held on Monday 26 April in Meetings Rooms
3 and 4, Clive House, Petty France.