Examination of Witnesses (Questions 40-59)
CAROLYN REGAN,
HUGH BARRETT
AND SARA
KOVACH-CLARK
16 JUNE 2009
Q40 Mr Tyrie: Do you not think it
might be a good idea to get it in the public domain as soon as
possible?
Sara Kovach-Clark: I think we
would like to do that very much but it is obviously important
that ministers get our advice first.
Q41 Mr Tyrie: That takes a day or
two. When do you think you can publish this?
Sara Kovach-Clark: The final response
to our consultation will be published on 14 August.
Q42 Mr Tyrie: I do find it astonishing
that you are relying on a bit of anecdotal evidence from some
solicitors in order to come to these conclusions on policy and
that, as you put it, you are relying on what solicitors choose
to tell you. Why do you not commission a small piece of survey
evidence based on a representative sample?
Sara Kovach-Clark: That is what
we attempted to do with the Ernst and Young survey and we asked
solicitors to respond to that survey; but, as you have heard,
they chose not to do that.
Q43 Mr Tyrie: Then you have to send
people round and ask solicitors if they will sit down with a surveyor.
Sara Kovach-Clark: As I have said
before, just because evidence is anecdotal it does not mean that
we do not hear it all the time from solicitors. We talk to them
a lot; they have responded in writing to various consultations
saying the same things and, as I said earlier, they say the same
things in meetings; so I think we are reasonably confident that
solicitors do their own advocacy for different reasons. But the
fundamental point is that when they do their own advocacy they
should be paid the same amount as barristers for the same work.
Q44 Mr Tyrie: Did I hear you earlier
say, Mr Barrett, that you had done an assessment of the risk of
a drop in supply?
Hugh Barrett: No, I said that
that was part of the work that Ernst and Young were doing for
us.
Q45 Chairman: That will be produced
when?
Hugh Barrett: At the end of this
month.
Carolyn Regan: The end of June.
Q46 Mr Tyrie: Do you think that it
would pose fundamental problems if there were a sharp drop in
supply?
Hugh Barrett: If there were a
significant drop in supply yes, it would case a significant problem.
Q47 Mr Tyrie: In which case why is
this research described as not fundamental to the structure of
the fee scheme?
Hugh Barrett: It is fundamental
to the decision whether we proceed with the fee scheme.
Q48 Chairman: That is a pretty significant
point.
Hugh Barrett: Yes.
Q49 Mr Tyrie: I have to say that
as I listen to this I can sense all confidence from everyone who
is dealing with every aspect of this proposal draining away and
I really do wonder whether it might not be a better idea if you
delay implementation of all this until you have collected the
data properly, understood it a little better and won the confidence
of some of the people who are involved in actually having to implement
these proposals. Would you be prepared to discuss that with your
political masters?
Carolyn Regan: We know that we
have an issue with increasing costs per case not matched by the
increase in volumes. We also know that we have an issue with equality
of payments to different groups of people doing similar work;
and we also know that we have to work within a fixed budget. Obviously
some of the issues that you have mentioned are under discussion
and we are trying to come up with a scheme which picks up some
of the previous points around complexity and preparation and I
am sure that you will have seen the letter sent today from the
Law Society, which actually supports an approach to equalise,
for example, advocacy rates paid. I know it is very late but we
are trying to balance those different interests and of course
the points that have come out today are in our submissions to
the Ministry of Justice on an ongoing basis.
Q50 Mr Tyrie: So, the short answer
to me could have been no, we are not considering a pause in the
implementation.
Carolyn Regan: We are taking all
of this into the mix and trying to come up with something which
resolves these outstanding issues. The two current ones are not
that the principle of paying the same rates for equal pay are
in disagreement; the disagreement is how you do that within a
fixed budget, recognising some of the things that we do know as
factual about the increase in cost per cases and not matched by
the increase in volumes. We also know that graduated fees are
not a good way of controlling the budget and actually have seen
an increase of 30% in family graduated fees over the last five
years. So clearly we have issues about complexity and preparation
and how do we balance those different interests and not impact
on either the supply of people doing this work or the work of
the courts, of which we are very mindful.
Q51 Mr Tyrie: So the real driver
is long-term public expenditure threats?
Carolyn Regan: I do not think
it is only that. It is, as I have said, trying to recognise that
we have an inherently unfair system at the moment and trying to
reward the people doing the work and indeed encourage the future
generation. But clearly public expenditure is one of my concerns
within a fixed budget.
Chairman: I am tempted to wonder if we
locked you in a room with the previous witnesses and went away
and came back a day or so later you might have actually come up
with a satisfactory answer.
Q52 Mr Tyrie: The alternative might
be that there would be rather fewer of you left than there are
now!
Carolyn Regan: We are in constant
discussion and we have mentioned a meeting this morning both about
the data and trying to address some of these issues, and also
having a scheme which has some long-term future; so I do not think
we need to be locked in a room to continue those discussions.
I believe—and Sara is much closer to it—that we are
making some progress and there is some agreement, but clearly
we need to come up with something which is advice. As was said,
it is not us publishing our response, it is a ministerial response
and the scheduled date is 14 August.
Q53 Chairman: If you go to the ministers
and say, "We think we have cracked the problem between us
within the budgetary constraint you have set" they are not
going to turn round and say, "No, go away again," are
they?
Carolyn Regan: No, no, absolutely
not; I would hope not.
Q54 Julie Morgan: You do not have
to stick to August 14 do you, surely?
Carolyn Regan: We do not have
to but we are re-letting all the civil contracts next year, April
2010, so obviously we have a window to link it in with that.
Q55 Julie Morgan: It just seems very
important, would you agree, that if you could settle it between
you that you did put off the date?
Carolyn Regan: Yes.
Hugh Barrett: But we have conflicting
pressures on us. We have one half of the profession wanting it
implemented quickly—equalising pay—and we have pressure
from other parts of the profession saying that they would like
it delayed.
Chairman: Some of that is outside the
main legal term, is it not? We are talking about August now and
I know family cases have to continue then, but it is a window
of opportunity there.
Q56 Julie Morgan: We are told that
this would disproportionately affect women and black and minority
ethnic people. I know you have a Provider Diversity Reference
Group and have you had discussions with them about the impacts
of these proposals and what do they say?
Carolyn Regan: We have discussed
with them and we have also discussed more recently with the Bar's
Equality and Diversity Committee and we have also commissioned
some focus group work additionally to get some views of people
working in this field. Do you want to talk about the discussion
with the Equality and Diversity Committee?
Sara Kovach-Clark: Yes. We had
a very constructive discussion last week. We are agreed that the
only way to mitigate the impact on women, black and minority ethnic
barristers is to look at introducing more measures for complexity
scheme and that is what we are looking at in conjunction with
our stakeholders. We are also agreed that the reason why so many
black and minority ethnic barristers and women barristers are
affected more by these proposals is because of the allocation
of work in the chambers—they traditionally get more of this
type of work when their white male colleagues get less of it.
So that is a factor that the Legal Services Commission has no
control over but we are working with the Equality and Diversity
Committee to obtain the best possible evidence that we can to
inform the impact assessment of our final proposals.
Q57 Julie Morgan: So you accept that
the proposals will disproportionately affect that group?
Sara Kovach-Clark: They will and
we will do our best to mitigate those, but there are matters without
our control and the allocation of work in chambers is not within
the control of the Legal Services Commission.
Q58 Julie Morgan: It just seems a
matter of concern that you are going to proceed along this line
if it is going to have this effect.
Sara Kovach-Clark: We have an
obligation to mitigate as far as we possibly can and that is what
we are looking to do.
Q59 Alun Michael: Can I ask you about
one specific thing and that is the exclusion from scope of the
guardianship services of guardianship services and independent
social work. Could you tell us what discussions you have had on
those aspects and on that exclusion?
Sara Kovach-Clark: We have had
a number of discussions with CAFCASS because they and we both
agree that this is work that should be more properly funded through
CAFCASS rather than the Legal Services Commission. However, we
recognise that if we were to take independent social work out
of scope that would have an effect on CAFCASS resources and so
we are in discussions with them at the moment as to how to deal
with that.
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