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

1. REGULATION REGULATION
REGULATION
Ruth Deech
for Blake Lapthorn
October 2009
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2. 2

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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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14. Regulating Reproduction
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15. The First IVF Baby
• Born in England 1978
• Sparked off global
debate
• Became a nursery nurse
• Has her own child
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16. The Warnock Report
• 1984: people need
principles
• Moral consensus
• Regulate
• Human Fertilisation and
Embryology Act 1990
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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
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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
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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?
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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
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21. Judicial review of the HFEA
• Taranissi case ARGC v HFEA [2002] EWCA Civ
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• Code of Practice (s25 HFEA 1990) specified
maximum 3 embryos
• Patient aged 47
• “not the function of the court to enter the
scientific debate”
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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
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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
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24. Dealing with student complaints
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25. INDEPENDENT ADJUDICATION OF
STUDENT COMPLAINTS
Thames Tower
Reading RG1 1LX
www.oiahe.org.uk
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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
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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
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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
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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
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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
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31. Impact of JR
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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?
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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
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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
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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
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