Justice Committee Contents

Examination of Witnesses (Questions 20-39)


25 FEBURARY 2009

  Q20  Alun Michael: Sorry, the ... .

  Chris Kenny: Office for Legal Complaints. The Board has a power to set the rules by which the individual regulators in turn make individual solicitors, individual barristers, handle complaints directly. To us, that is a very important power.

  Q21  Alun Michael: How are you going to use it?

  Chris Kenny: We have highlighted in the business plan that we want to develop a whole programme of work with approved regulators to try to get the profession to handle complaints right the first time. If I generalise very widely, and probably a little unfairly, but with sufficient truth in it, too many people in the legal profession see complaint as an assault on their professional integrity rather than as a matter of customer care which you have to get right to correct mis-communication and deal with maybe a slightly sloppily drafted bit of paperwork and so on—something which actually need not get anywhere near a court or professional discipline, and actually need not get near an ombudsman service. Too often, delays happen in the complaints process. We, as the Board, want to help the professionals get it right first time. We want the Office for Legal Complaints to be there to make sure that when it cannot get it right first time, it is handled very quickly and very promptly, in a way that, for all the effort people have given in the past in this area, frankly it has not been happening for consumers.

  Q22  Alun Michael: My final question I wanted to ask you have almost set up nicely by referring to the way that not just professionals but their regulatory bodies have very often regarded complaints; so it is very important, is it not, that the approved regulators have transparency as between their representative and their regulatory roles, that in my experience has not been the case in the past? How are you going to achieve that? Is that something that you see as a priority to drive?

  David Edmonds: It is the first priority that the Board will be addressing. I agree with almost all of your premise, and much of the Clementi report and much of the legislation is positive on the need to have clarity in that area; and sections 28 and 30 make it absolutely clear that there must be independence. I think it is a fundamental principle that you raise—the fear that we would get—"regulatory capture" is a phrase that you will be familiar with. I think the debate we will see over the next two or three months over independence of the trade union activity or representative activity and the regulatory activity, I hope will illustrate to you the clarity with which we perceive the Act, and the determination that we have that there will be a quite different way in future.

  Q23  Alun Michael: Would you agree with me that by and large the professions think they have done it, but they have not?

  David Edmonds: I would agree with you that the professions have argued that they think they have done it. I think if they had done it, Parliament in its wisdom would not have spent the months it did on producing three hundred and odd pages of legislation based on a Clementi analysis that—there are people here doubtless from the Law Society and the Bar Council who are listening carefully to what I say: I hear their arguments. I think in the next few weeks they will hear our arguments, and I think our arguments will be much more based on the premise that you have just articulated than on the premise, "it works; it is all right; we do not need to do anything else".

  Q24  Julie Morgan: You have mentioned this consumer panel as being very important, but that was not thought of the first time round, was it?

  David Edmonds: Yes.

  Q25  Julie Morgan: Why was that?

  David Edmonds: I think that there may have been an assumption in the work that was done as the Bill went through Parliament that this was something that could be done by volunteers freely; and there is an existing consumer group that the Ministry used during preparation of the Act that was very useful. I think there probably was not an understanding, which I brought to this organisation, which is that to do consumer work properly you have to have research from the start, and research that is asked for by the consumer panel and research that is directed by the consumer panel.

  Q26  Julie Morgan: So there is ...

  David Edmonds: Yes, there is a little committee that operated within Whitehall, with I have to say—I have met them on two occasions—tremendous input into the legislation. As we move into the much more detailed work—my experience in Ofcom with the Ofcom consumer panel was that the Ofcom consumer panel was at the heart of the Ofcom engine on many occasions.

  Chris Kenny: If I may add to that very slightly, the existing panel is made up of representatives of national organisations such as Which?, Citizens' Advice and Consumer Focus, which of course made a very valuable contribution and will carry on making a valuable contribution. The consumer panel model enshrined in the Act that is in place will act as a level of granularity one layer down from that, in the way that they do in other regulators, being able to look in detail at the sector. The national bodies have a cross-cutting perspective that we cannot do without, but we want to have both views rather than having to choose one perspective or the other.

  Q27  Julie Morgan: Who should be on this panel—what sort of person?

  Chris Kenny: We are looking at developing a person specification that will give us a wide range of experience. We want to capture people from different parts of the UK. The legal services market is very different in rural areas to urban areas, between Wales and England, between conurbations and other parts of the country. Equally, picking up different kinds of views, there is an important small business perspective that we have to capture just as much as an individual consumer perspective. We need to think about a balance of civil and criminal experience of the legal system, for example. We are hoping that we get a very diverse panel, some of whom may well have a lot of experience in the world of the great and good, some of whom I hope will be not bringing that kind of track record at all, but bringing perspectives from ground level. I think we have got a real opportunity to get some hands-on experience to feed in to the work that the Board will be doing.

  David Edmonds: We have got the job specification and person specification ready to go. It will be a totally open and transparent competition and advertised widely.

  Q28  Julie Morgan: Through the public appointment rules?

  David Edmonds: The OCPA—whatever OCPA stands for—whatever it is called, those rules will apply.

  Q29  Alun Michael: The Office of the Commissioner for Public Appointments.

  David Edmonds: Thank you, sir. Those rules will apply. We may not use the Office but those are the rules that apply.

  Q30  Julie Morgan: I am not quite certain in my mind what sort of people you are looking for, but you are saying it is a very diverse range. I agree that this panel is crucial and it is very important that it is seen as independent as well.

  David Edmonds: Putting it another way round, it will not be people like me who spend a lifetime working their way through bureaucracy; it will be people who represent, understand, the consumer interest in all the different manifestations. The very interesting question is how you get representation from a large user of legal services, which are people accused of, and indeed convicted of, committing crimes? It is an issue we have had in the Legal Services Commission. There is a voice there obviously—a lot of legal aid goes into that area and a lot of lawyers work in that area. There are some interesting questions about how we get that consumer focus.

  Q31  Julie Morgan: How do you intend to get that?

  David Edmonds: That particular bit we do not know yet. Altogether, putting out advertisements, in a wide range of media, making it known through consumer organisations that there is this competition going on, and then being very clear in the selection process that we do not want people who fit—you know, the sort of expertise of the professional consumer—or maybe some of that—but people who are going to give us a really hard-edged influence. I am used to it. In Oftel I had a number of consumer panels and I had a tremendous range of diverse interests that came in, and worked with us, so it can be done. It worked in Ofcom very well as well.

  Q32  Julie Morgan: How much of the £800,000 additional amount will be for the consumer panel?

  David Edmonds: I guess if you put the two, consumer panel and research, probably £350,000 of the £800,000.

  Q33  Julie Morgan: So would the members of the panel be paid?

  David Edmonds: Yes.

  Q34  Julie Morgan: How much?

  Chris Kenny: We have talked about a daily rate that would be equivalent to about that of a non-executive director in the NHS, and that is about £7,500 a year. I cannot remember, I am afraid, what it translates to on a daily basis, but it is about that level.[2]

  Q35 Julie Morgan: Finally on the panel, how would you build the public's confidence in this panel that is really crucial?

  David Edmonds: The first thing is that our responsibility is to appoint the panel, to appoint a good chair, and then to work with the chair and the appointments that follow. In terms of public confidence we would want to use exactly the route that one uses elsewhere: clear, direct communication, seeking of views—all sorts of routes—you may use focus groups as well as putting out consultation documents—use of new media, use of information technology—the whole range of communications that are available—but emphasise that we listen. The key is that they come to the Board and influence the Board, and they can only do that if they have "the confidence of the general public"—though as I say that, defining the confidence of the general public is clearly something you are much better at than I am! We will make sure that the work they do is well publicised, that we listen to it; and above all, I guess, my role is to ensure that whoever is appointed in the first place is top quality and can do the job that you and we would want them to do.

  Q36  Mr Heath: I was looking at the notes that you helpfully provided for us and I was struck by one phrase where you mention the key role, and you do this by "acting as a fulcrum on matters of legal services, research, education and training and development of standards". Acting as a fulcrum is obviously a pivotal role, but I am not quite sure exactly what it means! Can you help me?

  David Edmonds: I have to say, I asked the same question of my Chief Executive yesterday when I was reading the document before appearing here today, Mr Heath, so I will ask him to answer that!

  Chris Kenny: I could feel that one passing over to me! In a way, Mr Heath, it picks up the point which we have talked about already, about the scale of challenge which the Board faces with the comparatively small level of resource. If we were to attempt to set ourselves up as a definitive research institute or a super think-tank, we could easily use all of our budget and not pursue any of our other statutory obligations. We use the image of the fulcrum to say there is quite a lot of activity going on within the approved regulators, within the academic community and within think-tanks—and arguably there is work going on in other sectors of relevance to the legal services market. We, at the moment, do not perceive any organisation attempting to take an overview of them, attempting to pull it all together, attempting to highlight where there is overlap and where there are gaps. I am not sure that "fulcrum", with hindsight, is the best of words to describe that role; but that is what we are attempting to do, to make sure that the full research community is engaged in this and aware of what everybody is doing, and that we can pull together, highlight priorities together.

  Q37  Mr Heath: Separating the sciences from physics to chemistry, do you see yourselves as a catalyst for that research? Are you going to simply assess it and review it?

  Chris Kenny: What we are not going to do is become a body which is there purely to produce interesting research findings. We are very much about applied research, about making change happen. That said, that change has to be put together on the best possible evidence base. That will on occasion need research. At the moment, the £4.1 million budget does not allow for any research in our first year. We hope the budget we are consulting on will give us a little bit of room for manoeuvre to do something in the course of 2009. We expect in future years to have some capacity to commission research ourselves, but very much as part of a wider community engaged in a common endeavour in relation to access to justice, rather than us and us alone somehow being the only ones to commission the gold standard. There is a lot of good practice out there with a lot of commonality of interest and it would be crazy for us not to attempt to work with a wide variety of people in moving forward.

  Q38  Mr Heath: There is another phrase that I am not sure I understand, "providing constructive critical challenge"—to whom and how?

  Chris Kenny: I think we pick up a lot of what we have talked about in relation to the relationship with the approved regulators. At one level there should be very little tension between the Board and approved regulators. If you go back to the Act, we have exactly the same statutory objectives, so therefore we should not be in the business of duplication. However, as has already been clear from the discussion we have had this morning, the approved regulators often come from a history of combining representative and regulatory roles. Some work has been done on separation and more may well need to be done—and more may well need to be seen to be done in—order to give the public the confidence that that separation happens. The Board is there really to—if I say hold feet to the fire, that sounds threatening and I do not mean it in that way at all, but I do mean it is there to provide the guarantee to the public and to Parliament that that separation has happened, and that can only be done on occasion by asking rather tough, rather challenging questions. As the Chairman explained, we will be putting out the framework to explain how we will do that on independence fairly soon. The business plan explains how we want to develop a model of regulatory excellence, which we and the approved regulators can then together use to measure how far each of them are away from achieving that. Some of those conversations will be consensual and some will be rather tougher, but I hope they will always be respectful because we are, at the end of the day, aiming at the same outcomes.

  Q39  Mr Heath: One of the more controversial aspects of the Act that disquiets Members here as well as the professionals outside, is the development of alternative business structures. Do you see part of your role as advocates of ABS, of actually making them happen, and, if so, how do you see that progressing?

  David Edmonds: The short answer—the only answer to your question is "yes". The Act does give us a duty and a responsibility to carry forward the development of alternative business structures. Again, if I can personalise this for a moment, because, I suppose, my previous experience in regulation was a factor in me getting the job, widening access and quality of access, it seems to me, are at the heart of much of the fundamental principle of what good regulation is all about. All the analysis that has been done seems to suggest that the broadening of access to justice, the wider range of hopefully less expensive services, can be brought about—or a major contribution to bringing it about—can come through the introduction of alternative ways of doing business. Therefore, yes, I do see myself and my Board as, advocates and I see the work that we are going to be producing in a few weeks' time with some ideas about how we might take the business structures forward as being a key plank of our first year. I think we have a duty to carry it forward rather than simply a responsibility.

2   Note by witness: £260 per day Back

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