Examination of Witnesses (Questions 26-39)
CAROLYN REGAN,
HUGH BARRETT
AND SARA
KOVACH-CLARK
16 JUNE 2009
Q26 Chairman: Welcome. You were all here
during the earlier session so you have heard the evidence and
we will probe you in more detail about it but what is your initial
reaction to the strength of feeling and the unanimous view that
there must be a better way of doing this?
Carolyn Regan: We agree with some
of what was being said in terms of trying to reach a solution
within the resources we have available. That is why we are working
with the FLBA and others to try and address some of the key issues.
It was quite difficult to hear but one of the key issues was about
complexity of cases and that is a piece of work which is going
on. The second point is of course the issue of fairness and equality
of pay, recognising that 63% of advocacy in these family cases
is undertaken by solicitors. That is another issue we are trying
to address.
Q27 Dr Whitehead: You have heard
the concerns that have been expressed about the data and the basis
on which the data that is available is being used and indeed the
emergence of data during and after the period of consultation.
Are you confident that the data on which you are relying is sufficiently
robust and accurate to give you the underpinning for your proposals
that one might think it should?
Carolyn Regan: The feedback I
had from the meeting this morning was that this was described
as the best source of data available in terms of its cleanliness,
if I can put it like that, at the state it is in now. Obviously,
as has been mentioned before, we are using the advice and oversight
of Professor Paul Fenn as well as the existing statisticians to
continue those discussions which have been numerous. As at this
morning, I was told this was the best source of data available.
Sara Kovach-Clark: We consulted
on the data as well as the structure. We shared data as part of
our consultation process. During that the Bar has been extremely
helpful in raising issues and helping us to resolve those issues.
As issues have come up we have resolved them. There is one remaining
issue that we have still yet to resolve but I am confident that
we can resolve that issue certainly by the end of next week. So
far nothing has been raised that has shown a material difference
to the proposals that we consulted on. I think we will have an
excellent set of data by the end of this consultation period.
Q28 Dr Whitehead: Forgive me but
is it not more normal practice to have data which informs the
beginning of a consultation rather than data that emerges during
a consultation and is refined after the end of it?
Sara Kovach-Clark: Data has not
emerged in that sense. Issues with the data have emerged which
we have resolved and shown that the data that we consulted on
and the data that we formed our consultation proposals on was
fit for purpose, is still fit for purpose and I am confident will
continue to be fit for purpose.
Q29 Dr Whitehead: The Ernst and Young
research which commenced after the end of the consultation and
has been suggested as not being, strictly speaking, relevant to
the consultation appears to be central to it, does it not?
Sara Kovach-Clark: I would not
say it was central to the consultation. It is an additional piece
of information, a piece of economic analysis that will help inform
us as to the final impact of our final proposals. We have always
been clear that we would show stakeholders a copy of the report
and allow them some time to comment on it. I am very grateful
to the Bar for the work that Dr Price has done with Ernst and
Young. That has been very helpful and we ourselves have I think,
through Ernst and Young, been helpful to the Bar who have instructed
their own economic consultants to look at some of the issues that
Ernst and Young are looking agriculture. When we awarded the tender
to Ernst and Young, we shared the terms of reference and what
Ernst and Young were looking at with all of our stakeholders as
soon as we were allowed to do so under the terms of procurement
law so we could be as open and transparent as possible, so I think
we have been fair and open there. We will be allowing people time
to comment on the proposals and the Bar have instructed Oxera,
a firm of economic consultants with whom Ernst and Young have
cooperated in terms of the work that they are doing.
Q30 Dr Whitehead: Why was it commissioned
when it was commissioned then? Should it not have been commissioned
somewhat earlier? What is the cost of the commissioning in any
event?
Sara Kovach-Clark: I understand
that the cost of commissioning is about £63,000, not £100,000.
We always intended to instruct economic consultants once the proposal
had gone out. It was an issue of resources for us as the LSC and
it was always an additional piece of information. We never saw
it as fundamental to what we were consulting on.
Carolyn Regan: It is additional,
economic analysis. It is not fundamental to the shape of the proposals
we consulted on.
Q31 Chairman: Why is it worth spending
£63,000 on it?
Carolyn Regan: Because it is ongoing,
additional, economic analysis which we would do anyway. That is
part of what we continue to commission as we look at the impact
of the ongoing changes.
Hugh Barrett: One of the key things
we are going to get out of the economic research is an assessment
of the risk of a drop of supply. We are also going to look at
the possible increase in supply because one of the implications
of our proposals is that the rates we are paying solicitors will
rise as a result of this. It is important to recognise that currently
63% of advocacy in family courts is done by solicitors, not by
self-employed barristers.
Q32 Dr Whitehead: If it is described
as the cherry on the cake but there was not apparently a cake
in the first place as far as data was concerned, is that not a
rather odd way to go around organising data, whether it is central
or peripheral, for a consultation process?
Carolyn Regan: There was a set
of proposals which is what we consulted on. They were about addressing
this issue of fairness and the fact that we are paying solicitor
advocates and independent advocates different rates at the moment.
As Mr Barrett said, 63% of that work is done by solicitors. We
have also looked at cleaning up the data on an ongoing basis in
discussion with the family Bar and others.
Q33 Dr Whitehead: You have specifically
written to the family Bar stating a little while ago that the
in-house employment of advocates by solicitors is a statement
made on the basis of anecdotal evidence. You do not keep a written
record of anecdotal conversations that you have had, but these
are things that come up time and again. Do you know the number
of in-house advocates or are the anecdotes the basis on which
some of the planning has been done?
Sara Kovach-Clark: The consultation
has not just been done on the basis of anecdotes. We have had
several pieces of evidence that have come through in responses
to other consultations as to why solicitors instruct counsel to
do advocacy. That is the anecdotal evidence that I think you are
referring to in that letter. I do not have a copy in front of
me. While it may not be hard facts and data, solicitors have said
to us on numerous occasions, both in response to formal consultations
and in public consultation events face to face, that there is
a variety of reasons why they instruct counsel and they are not
all about complexity. Often, it is about convenience as well.
Q34 Chairman: You told us that the
employment of in-house advocates by solicitors is a statement
made on the basis of anecdotal evidence. You have not carried
out any specific research into this area. What do we know and
how do we know it about the number of in-house advocates employed?
Sara Kovach-Clark: All we can
know is what solicitors choose to tell us. We have tried to obtain
that information from solicitors. They have not told us that.
We do not have specific figures on in-house advocates because
you do not have to necessarily be a trained solicitor advocate
with higher rights of audience to be able to do advocacy. Lots
of solicitors do it as an ordinary part of their work.
Q35 Dr Whitehead: Could I turn to
the statement that you made about swings and roundabouts in terms
of the fee payments and so on for practitioners? Is that not counter-intuitive
in a system where practitioners graduate from simple to complex
cases as their career progresses? Certainly, if we are saying
that that looks counter-intuitive does that not imply that advocates
can actually be paid less as they become more senior?
Sara Kovach-Clark: In the proposals
that we are looking at in conjunction with our stakeholders, the
Law Society, the Bar and other solicitor representative bodies
we are looking at being able to reflect complexity more effectively
in the final proposals. So those barristers who just do complex
work should find themselves more appropriately remunerated, I
would suggest.
Q36 Dr Whitehead: If you do want
to encourage solicitor advocates—and state they should be
paid the same as barristers—why then was that group penalised
in the 2007 reforms by the failure to separate out payments for
preparations for hearings, as opposed to the more general preparation
that all solicitors do?
Sara Kovach-Clark: The 2007 fee
scheme was based on the historical cost of cases and so preparation
would have been recorded as part of the solicitors' profit costs
and so those preparation costs were included in the 2007 scheme.
However, one of the things that we have been looking at with our
solicitor stakeholders is a way of appropriately remunerating
those solicitors who do their own advocacy and do preparation
for that advocacy, and I am confident that the new scheme will
reflect that appropriately.
Q37 Dr Whitehead: When you say you
have been looking at it, is that material that is in the consultation
or post consultation or is it in train?
Sara Kovach-Clark: We had a separate
consultation on the phase one fee scheme review. We did a report
that looked at the operation of the phase one fee scheme where
these first 2007 schemes were looked at again. In that group we
suggested that as the historical costs of preparation of advocacy
were included in the existing scheme one way of appropriately
remunerating those who do their own advocacy was to take a proportion
out of the representation budget and put it into the advocacy
budget and that is what we are looking at doing at the moment.
Q38 Mr Tyrie: Have you made any estimate
of the long-term effect of these changes on other areas of public
spending?
Sara Kovach-Clark: With respect
to independent social work, yes, we have. We have been talking
to the Department for Children, Schools and Families and with
CAFCASS as well and we are very clear about it would not be appropriate
for us to make any changes where we have not considered the effect
on them as well, and we will continue to talk with them on that.
Q39 Mr Tyrie: Is that in the public
domain?
Sara Kovach-Clark: Not at the
moment because we are working together to provide joint advice
to our ministers and so it is important that we get that advice
to ministers first and that they have an opportunity to consider
it.
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