Remember remember 1 November!

Leading up to bonfire night, it would seem apt that there are several plots afoot. This one thickens and V is for the two fingers put up to the ACL by the CLSB, as well as for Vendetta, it would seem. 

I’m pleased to see that the Costs Lawyer body seems to have finally woken up and realised just how serious things are with regard to the ACL, but out of the blue, the CLSB has seemingly flexed its own muscles in a move looking more out of spite than duty to regulated members. Leading many to ask not just 'why?' but 'why now?'

I think a few people have been on the right track with this, but there are some important points to make and some threads to draw together. There are a few things that can be DONE not simply just talked about on twitter and Linked in. 

I posted last about the CLSB’s own internal complaints procedure and cryptically suggested this might be something to look at, but actually it goes much deeper than that and hopefully leads to something that the membership can actually DO.  I’ve seen the statement from the ACL today and note they’re still on course to chat on 16th November.  It’s not their fault that the way they’re structured, means that they’re not necessarily equipped to act or react as quickly as a situation might require.  Hopefully, between now and then the membership can assist with the formulation of a plot, I mean plan.

Buried at the bottom of their most recent newsletter, the CLSB quietly announced the 'suspension' (effective closure) of the ACL Training arm. That’s right, there will be no further students, other than those already enrolled, trained on the ACLT course with immediate effect. Now you’d imagine there would have been some sort of consultation on this. You'd be thinking about transparency etc, you'd be wrong.

Firstly though, the CLSB clearly felt it necessary, given ‘recent misunderstanding’ to explain its role. Quite why a reaffirmation of this remit some seven years on was felt necessary is as astonishing as it is confusing, but we will get to that. First things first though, they clear up fees and call in money for certificates. Priorities!

After some pleasantries it was down to business:

“The CLSB has taken the difficult decision to suspend any further intake onto the current three year costs qualification.”

Naturally, there are several fundamental issues with this; not least TIMING. The ACL conference was held on 21st October, where an open forum was held to discuss the current situation in which the representative body finds itself, to include the viability of the training course itself moving forward.

When I first read the newsletter, I had to rub my eyes, I thought I was seeing things. As far as I was aware; the members had held a forum and following on from this the plan was for the Council to retire to discuss options put to them that day and received prior, and to decide the best route forward for all. The CLSB were also in attendance.  All very helpful.  It was therefore astonishing that some 11 days later the CLSB would pull the plug on the primary cash cow for the ACL. Anyone interested in the minutes of how this decision came to pass? You’ll have to wait until January 2018 for that!

Questions write themselves but I think it is helpful to draw back for a moment and view things through the lens of the obligations of the CLSB as the regulator it is keen to remind us it is. In 2014 it seems that the CLSB had good intentions and adopted/endorsed ‘The Regulators Code’ as their own in its commitment to ‘providing a regulatory environment that does not interfere with business prosperity’.

https://clsb.info/wp-content/uploads/2014/07/Policy-16-April-2014.pdf

Let’s look at these now for a moment shall we:

You’ll see that it is acknowledged that ‘regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent’.

Straight away, most people will be sitting forward in their seats because this doesn’t seem to ring true in light of recent events. But there’s more.

Code 1 states the ‘CLSB will continue to consider impact on…the costs lawyer profession’ and will ‘continue to employ those with business acumen and experience at both executive and non-executive (board) level’.

Code 2 is particularly interesting. ‘Regulators should provide simple and straightforward ways to engage with those they regulate and hear their views’. Reading Code 2 strikes just as oddly when you consider the provisions. I don’t propose to list them all here: those interested enough might wish to click the link to the code itself and form their own views. But the thrust of this is based on communication, regular engagement and to seek the views of the ACL. Consultation (?) Surveys (?) I must have missed all this being done since the conference. It seems that one of the single most drastic and important decisions ever taken by the CLSB in its entire history, was taken behind closed doors and incredibly quickly without a peep to anyone. If the ACL knew- WHY wasn’t it part of the discussion? If they saw it coming- why issue a statement on Facebook addressing concerns AFTER the fact? All very strange.

It really does beg the question WHO KNEW about the upcoming decision and WHEN was it taken?

Under ‘Monitoring’ the Code provides that the CLSB will ‘identify new methods and means of engaging with the costs lawyer profession as an ongoing process.’ It seems that the CLSB has directed resources into telepathy.

Code 3: CLSB will ‘base their regulatory activities on risk’. Risk of what exactly? Embarrassing themselves and the membership in one fell swoop? Killing the one good thing that has been the life blood of the association to date but ailed through inaction? It strikes me that the biggest risk to the membership is the CLSB themselves!

Apparently evolving is high on the CLSB agenda, ensuring to remain current and effective. Their latest act would seem to be one of the things which in a few short years will make them irrelevant and inactive.

Code 4: Now we get to some fun. The CLSB acknowledges that they are subject to oversight by the Legal Services Board in accordance with the Legal Services Act 2007. We’ll get to that shortly, but a point on monitoring again, the CLSB will identify shared information required to make informed decisions. Interesting.

Code 5: Love this. The CLSB will consult on changes to regulatory arrangements with, among others, ‘the Costs Lawyer Profession’. I wonder, since the Costs Lawyer profession was not consulted recently, who, if anyone, was?

Code 6: Transparency. Less said the better.

I’m sure quite a few people are getting pretty annoyed with this situation right about now. I am. I called the LSB today to ask what the procedure is to complain about a regulator. There isn’t one. You have to write to a general email and set out your issues.

What? Regulators have absolute power? Not quite. Power is devolved and derived from the LSA 2007, so it really is worth looking at this.

https://www.legislation.gov.uk/ukpga/2007/29/contents

Recommended bedtime reading? You bet. I scoured the contents looking for anything relevant and found several of interest.

Allow me to direct eyes: first up: Part 1 Section 1: ‘The Regulatory objectives’. https://www.legislation.gov.uk/ukpga/2007/29/section/1

I’m sure people might like to familiarise themselves with these cast against the current backdrop of action taken. 

Part 4 Section 28 ‘General duties of approved regulators’.

https://www.legislation.gov.uk/ukpga/2007/29/part/4/crossheading/general-duties-of-approved-regulators

IMPORTANT:

Section 32.

https://www.legislation.gov.uk/ukpga/2007/29/part/4/crossheading/directions

Scrolling down to Section 41: ‘Intervention’.

https://www.legislation.gov.uk/ukpga/2007/29/part/4/crossheading/intervention

This sets out that the LSB may have to step in where it is satisfied that an act or omission has or is likely to have an adverse impact on one or more of the regulatory objectives. 

Under Section 45: In the most serious cases the LSB can cancel approval as a regulator.

https://www.legislation.gov.uk/ukpga/2007/29/part/4/crossheading/cancellation-of-approval

So it would seem that absolute power is not so absolute after all.

This post is based primarily on information and reference to codes, it is aimed at assisting arming the profession at large with enough information upon which to act. But as previously stated, perhaps the first port of call is via the CLSB’s own internal complaints handling policy. Subject to the outcome of this, and information surfacing therefrom, an informed decision can be made as to whether the matter is taken formally to the LSB with a view to intervention under the 2007 Act.

I do not profess to have answers, but as many in the profession will; I have many questions.

The second part of the same paragraph killing the ACLT function involves the CLSB announcing focus on alternative entry to the profession such as a competency test/apprenticeship. I’m not suggesting that I believe that the current 3-year structure is perfect and given market forces and set against the Jackson backdrop, I can see reason in shortening training time for entry, but this must be carefully balanced against quality of training resulting. Surely the lower quality the training the more of a job the CLSB will have dealing with complaints? It all seems so short sighted. Not least because to get the level of apprenticeship right it might be akin to the solicitors’ route at 5-6 years?

There are so many issues arising from all this, it really is hard to list them all here, but aside from consultation to the profession; there is the obvious issue of funds.

https://clsb.info/policy-outcomes/cost-of-regulation/

One only need look at the CLSB accounts to see that there is no slush fund greater than around ￡55k after the ￡97k in salaries last year.

Since the CLSB are unlikely to be equipped to deal with competence tests themselves, and would require advice thereon, where is the budgeted allowance? Did anybody think that keeping the practicing certificate price at ￡250 might have been imprudent given what was coming next? It would seem not, these are frozen as per the newsletter.

I understand that the LSB approved rules for the continuance of the ACLT course at the back end of June this year. It was stated that the CLSB believes that changes to rules would enable ACL Training to better achieve the outcomes of the three-year qualification and this was stated when the CLSB knew full well what the current student intake numbers were for this year. It was left that delivery would be reviewed and that it might be possible for those with relevant exemptions to mean completion of the course could be achieved in around a year.

It really does beg the question: What changed? What has so urgently changed in the last couple of weeks which would cause such a drastic, seemingly knee-jerk reaction to kill the ACL Training course and look at replacing it with Jeremy Corbyn-esque ‘ambitions rather than policy’.

The CLSB will find that the problem is when you awaken people in this way it provokes a response and the CLSB must be prepared for this. They must be called to explain this decision, its timing and the rationale. It simply does not outwardly make sense and is somewhat embarrassing for the profession, to be frank. 

I’ve seen commentary this morning that because the impact of the suspension will not ‘hit’ until around September 2018 there isn’t much in the way of urgency to respond or give further information at this time.  The minutes of the meeting giving rise to this not available until Jan 2018.  

What the CLSB won’t have perhaps counted on, or indeed underestimated is that we can call upon them to answer us NOW- in these extra-ordinary circumstances of such a nuclear decision taken without notice. If they do not respond appropriately, hopefully the profession will be galvanised to unify and fire individual requests/complaints to the CLSB. For me, what needs to be done urgently is a unified complaint to the Legal Services Board on [email protected] citing perceived regulator code violations in addition to relevant sections of the Legal Services Act which empowers the  LSB to take action under Section 32 of the Act to seek direction.

It would also strike anyone that the CLSB have adopted the pirate mentality in relation to rules and codes. They’re just guidelines, right? But keeping on theme here; if the CLSB thinks that it’s legion of Cost Lawyer payees will simply accept this without question; they’re mistaken. 

The masks have been sent out, the CLSB need most definitely to remember to expect us.  

"People should not be afraid of their governments. Governments should be afraid of their people."