Regulatory law seminar

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Blake Lapthorn solicitors' Professional Regulatory team held a seminar on regulatory law during October 2009.

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Regulatory law seminar

  1. 1. REGULATION REGULATION REGULATION Ruth Deech for Blake Lapthorn October 2009 1
  2. 2. 2
  3. 3. The Bar Council . • The Bar Council was established in 1894 to represent the interests of barristers and speak for them in matters of public interest and the administration of justice. Current chair is Desmond Browne QC. In 2010 Nick Green QC. • www.barcouncil.org.uk 3
  4. 4. The Bar Standards Board • Following recommendations of the Clementi Review http://www.legal-services- review.org.uk/content/report the Bar Council set up the independent BSB to regulate the Bar and separate regulation from representation http://www.barstandardsboard.org.uk • 15 Board members (barristers and lay), 7 committees 4
  5. 5. What does the BSB do? • It regulates the life of the barrister from education and training to pupillage, continuing professional development, setting standards of conduct, monitoring the service provided to assure quality, handling complaints against barristers and taking disciplinary action where there is misconduct • Excellence, the rule of law, putting the consumer first • It makes decisions about the ways barristers may work under the Legal Services Act 2007 5
  6. 6. BSB Quality Mission • Review of education, aptitude test (2000 bar students a year, only 500 pupillages) • Review of pupillage • Review of CPD • Revised Code of Conduct • New complaints scheme (first referral to Chambers, poor service to OLC) • Quality assurance • Register 6
  7. 7. The Legal Services Act 2007 ’. • Created the Legal Services Board to oversee the legal approved regulators, the Bar Council and the solicitors • Set up Office of Legal Complaints – a new ombudsman single entry point for complaints, but professional misconduct still reserved for BSB • Facilitates new working structures, Legal Disciplinary Practices, Alternative Business Structures 7
  8. 8. Regulatory Objectives • LSA 2007 – in no particular order: • Protecting and promoting the public interest • Supporting the rule of law • Improving access to justice • Protecting and promoting the interests of consumers • Promoting competition in the provision of services • Encouraging an independent, strong, diverse and effective legal profession • Increasing public understanding of the citizen’s legal rights and duties • Promoting the professional principles 8
  9. 9. New Working Structures LDPs ABSs Bodies with mixed lawyer Lawyers and non-lawyers ownership Multidisciplinary – “Tesco 75% must be legally law” qualified Equity ownership by non- Will be regulated by the lawyer investors SRA Regulated by LSB or other regulators 9
  10. 10. Barrister Only Partnerships • Might replace chambers system of self employed barristers • Affects cab rank rule • Barristers will be conflicted out of opposing each other once one of the partnership is instructed • Demands of LSC affecting way barristers seek work • Increased direct access 10
  11. 11. LSA Critique • Overregulation, duplication and competitive regulation • LSB not cost capped • Bar need not be treated like solicitors • No evidence that there will be improved service to clients, nor of what they want • Action against individuals is more effective than against entities • Profit v. professional standards • Referral fees • Fewer firms and more concentrated • Barristers conflicted out and corralled in 11
  12. 12. A Fused Profession? • Barristers defend the unpopular client without regard to commercial conflict • Duty to the court • Influence overseas • Economy of overheads • Specialist advocacy and advice • Referral from solicitors nationwide • Free from organisational culture and pressures • Should look at early education of law graduates 12
  13. 13. Challenges • Decisions in November; entity regulation to be decided next year • Legal aid has been cut, publicly funded criminal and family work is drying up • Bar is challenged by HCAs, CPS and need to bid for legal aid contracts • New working structures may be unattractive to students and overseas firms • What is anti-competitive? Have right considerations been taken into account? 13
  14. 14. Regulating Reproduction 14
  15. 15. The First IVF Baby • Born in England 1978 • Sparked off global debate • Became a nursery nurse • Has her own child 15
  16. 16. The Warnock Report • 1984: people need principles • Moral consensus • Regulate • Human Fertilisation and Embryology Act 1990 16
  17. 17. Human Fertilisation & Embryology Authority UK • Established by 1990 Act • Licences and monitors clinics and laboratories, IVF and embryo research • 22 members appointed after advertisement • Provides advice to the public • HFE Act 2008 extends 17
  18. 18. Benefits of regulation • Protection of the embryo • Welfare of the child • Record of treatments and donors • Control of market forces • Answerable and representative • Looking ahead 18
  19. 19. The Realities of Regulation • The constraints of the legal framework • Resources need to enforce and defend in court • The power of the media and images • The pressure from politicians • NHS provision uneven • Is infertility an illness? How far to go? 19
  20. 20. Ethical dilemmas • Frozen embryos and career women • Older mothers • Sex selection • Becoming a father after death • Donor anonymity • Preimplantation genetic diagnosis, screening out disability, saviour siblings • Single women and the need for a father • Cloning and stem cells • Egg donation • Animal/human embryos 20
  21. 21. Judicial review of the HFEA • Taranissi case ARGC v HFEA [2002] EWCA Civ 20 • Code of Practice (s25 HFEA 1990) specified maximum 3 embryos • Patient aged 47 • “not the function of the court to enter the scientific debate” 21
  22. 22. Becoming a Father After Death • Diane Blood took her husband’s sperm after his death from meningitis • [1997] 2FLR 806 • Export loophole and European law • Removing sperm is an assault • Appeal to Lords unaffordable 22
  23. 23. Other legal challenges • The Hashmi case; possibility of a saviour sibling challenged by Right to Life, Quintavalle v HFEA [2005] UKHL 28 • Evans v UK Application 6339/05, 10.4.2007, Grand Chamber: men can say no • In general judges have taken a broad and scientific view of the HFEA law and human rights • Money a major determinant 23
  24. 24. Dealing with student complaints 24
  25. 25. INDEPENDENT ADJUDICATION OF STUDENT COMPLAINTS Thames Tower Reading RG1 1LX www.oiahe.org.uk 25
  26. 26. Establishment of the OIA • Framework set out in Higher Education Act 2004 • Designated operator of the student complaints scheme • All universities in England and Wales covered by Scheme Rules from 1 January 2005 and must have compatible procedures in place 26
  27. 27. Student complaints • Complaints about acts or omissions of university/college e.g. – Welfare issues – Contractual issues – Breach of HEI procedures – Discrimination – Poor practice – Disciplinary matters 27
  28. 28. Subject Matter of 900 Complaints in 2008 • Academic Appeal/Exam Results/Degree – 65% • Contract – 21% • Discrimination & Human Rights – 9% • Disciplinary Matters – 11% • Welfare & Accommodation – 2% • Plagiarism, Cheating & IP – 3% • Other – 4% • Financial – 5% • About 600 settled a year 28
  29. 29. Types of Recommendation • Refer back to university • Better considered in another forum • University to pay compensation • University to take some action • University to change its internal procedures 29
  30. 30. Judicial Review of the OIA • Should the OIA investigate the facts for itself or review the hearing held by the university? • How seriously to take procedural defects, e.g. delay? • Do students have human rights? • Why is legal aid money granted for complaints by students for whom there is a simple ADR system? • Enormous cost in money and time 30
  31. 31. Impact of JR 31
  32. 32. Attitude of Courts to OIA • So far resisted claims based on academic judgment • Express enthusiasm for ADR and decisions by expert bodies • Standard of proof in disciplinary matters? • Failure to accept recommendation – injunction, judicial review of university? 32
  33. 33. Siborurema v OIA • [2007] EWCA Civ 1365 • Was the OIA subject to judicial review? • Review and rehearing - or does the entire case have to be re-examined on application to the OIA? • Held: few applications would get permission to JR • OIA has broad discretion; may start with final decision by the university 33
  34. 34. Who makes the decisions? • Parliament entrusts the regulator • The regulator is regulated • Lack of trust • Cost and effect of judicial review, even when cases do not reach court • Low barriers to entry • Merits or unreasonableness? • Makes decisionmakers overcautious • Funding too important 34
  35. 35. Governance • Issues – lay or professional majority? • Distance between Board and executives (BBC) • Conflicts of interests • Getting the information • Plain language • O’Neill Reith lectures A Question of Trust Lecture 3 • Accountability or central control? Professionals are the strictest on each other • Choose good curious committed people 35

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