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LONDON SEPTEMBER 2005
THE SECRETARY’S REPORT - APPENDIX B
The aims of the
to promote interest
within the Commonwealth in all aspects of public sector law and its
to provide a focus
and forum for the exchange of information and ideas;
to support public
sector lawyers in the carrying out their professional duties:
to provide machinery
for the organisation or promotion of training and consultancy services
for public sector lawyers;
to assist the
Commonwealth Secretariat, the Commonwealth Lawyers Association and the
organisers of the Commonwealth Law Conferences on all matters relating
to public sector law and its practice; and
to undertake any
activity relevant to and calculated to implement and foster all or any
of the preceding aims.
This report notes
activities of CAPSL since the last meeting in Melbourne in 2003. Consistently
with prior reports, it contains some history as well as some background for
new members. In that sense much of the history is extracted from the report
given to the 2003 Meeting by the former Secretary Christopher Robinson and I
acknowledge his contribution.
It then lists what we
have (and/or have not) achieved so far and finally seeks to target the issues
that we need now (or may need in the relatively near future) to address.
The idea of such an
association as ours stems from a discussion in Auckland during the course of
the 9th Commonwealth Law Conference in 1990 by three local
government delegates, who felt that there was little of sufficient interest,
in what was otherwise an excellent programme, to attract local government
lawyers particularly and government lawyers generally.. It was agreed that
something needed to be done in relation to future such conferences and Mr.
Robinson was asked to explore the possibilities.
One of the reasons
behind long time initial Secretary, Christopher Robinson, attending the
conference, which was funded by the Law Society Local Government Group, was to
try and establish links with local government lawyers in other Commonwealth
jurisdictions for mutual benefit. The Group had therefore few, if any,
reservations in subsequently agreeing to support his eventual proposal to try
and establish a Commonwealth-wide public sector lawyers association and to
fund its establishment costs.
In the run up to the
Nicosia Conference in 1993 arrangements were made, with the assistance of the
Commonwealth Lawyers Association which Mr. Robinson had by then joined, for an
exploratory meeting to be held. Carl Rattray QC, Attorney Jamaica accepted an
invitation to address the meeting on the theme “The Lawyer – the key to sound
Public Sector Administration”. The meeting was in consequence well attended
and at the conclusion, there being unanimous support for establishment of a
public sector lawyers association, it was agreed to establish a steering
committee with Mr Robinson as Secretary. There was the promise of assistance
from the Commonwealth Secretariat who felt that its establishment would have
wide-ranging benefits. The task of the steering committee was to make
arrangements for a further meeting at the next Conference and to prepare a
draft constitution for discussion on that occasion.
problems, with help from the Commonwealth Secretariat and the Commonwealth
Military Lawyers Association a draft constitution was eventually put together.
David Gates, a Canadian lawyer who was at the time Chairman of the CBA Public
Sector Lawyers Conference, eventually agreed to take responsibility for making
the detailed arrangements for and for chairing the proposed meeting in
Vancouver in 1996. He thus became, in practice, de facto Chair of the emerging
The main Conference was
immediately preceded by a highly successful one day seminar organised by David
for his CBA colleagues but to which all public sector lawyers attending the
Conference were made welcome. During the course of the Conference the
inaugural meeting of the Association was held at which refreshments were
kindly provided at the expense of Sweet & Maxwell. There was a stimulating
address by John Tait at the time the Deputy Justice Minister of Canada on the
theme “The Public Service Lawyer, Service to the Client and the Rule of
Law”. An interesting discussion of the draft constitution then followed.
On one point, the composition of a small representative Executive Committee,
there were diverging views and in consequence the draft was approved only as a
working document until the next Conference. The issue of constitution content
was left for further discussion between the Commonwealth Secretariat and Mr.
Robinson as the duly elected Association Secretary. Dato Heliliah Yusof,
Solicitor General of Malaysia, as the nominated representative of the host
country for the next conference was duly elected as Association Chairman
In Kuala Lumpur in
1999, a seminar was not arranged although the Association took joint
responsibility for organising and providing speakers for a plenary Conference
session on Judicial Review.
The next meting was
intended to have been in Zimbabwe. However, with that conference not held, it
became necessary to identify an Australian lawyer to take over the Association
Chairmanship. With the concurrence of the President of the Commonwealth
Lawyers Association, James Syme the Victorian Government Solicitor agreed to
take on the task and was duly appointed. He was a tireless help in preparation
for the Melbourne Conference.
conference was held on the day before the Commonwealth Law Conference proper.
It involved a series of seminars on a range of topics of relevance to public
sector lawyers and involved speakers from Jamaica, UK, Australia, New Zealand.
At the Melbourne meeting Mr. Robinson, CAPSL's long time initial secretary
(and one might say prime mover) retired from his position and the
Secretaryship moved to Greg Ross in Australia.
I must say that Mr.
Robinson's continuing support and involvement has been most beneficial and, at
times, indispensable to me as I work my way through the intricacies of
demonstrated the need for a UK based Assistant Secretary. Nigel Roberts was
selected and his assistance as Assistant Secretary has greatly aided and
relieved the problem of distance in CAPSL's regular communication with the
The position of
Treasurer passed to Michael Antrum also of Australia.
In the absence from
the Melbourne meeting of a UK based CAPSL member having volunteered to be
Chair, Mr. Syme retained the Chair pending identification of a UK based
lawyer and with the concurrence of the President of the Commonwealth Lawyers
Association, Mike Kendall, County Secretary, West
Sussex County Council UK agreed to take on the position and was duly
Associations such as
CAPSL are not easily or quickly established, particularly due to the tyranny
of distance and funding concerns which require most CAPSL efforts to be
Since 2003 the NSW Law
Society's Government Solicitor's Committee has sponsored CAPSL by providing
monetary and administrative support to CAPSL.
Over time CAPSL has
steadily, if slowly, progressed towards building a viable association
membership base. The initially key priority, to promote and develop our
membership base, has been our main concern and with some success.
The development and
subsequent maintenance of the CAPSL web site is of equal significance but
funding remains a problem..
CAPSL has regular
contact with the Commonwealth Secretariat on a range of issues. CAPSL already
features as links from and to a range of key web sites eg IBA, CLA,
Commonwealth Secretariat. We also feature in a number of relevant reference
books. We have been invited to take part in Commonwealth and NGO related
Government's Administrative Review Council recognises CAPSL for submission on
law reform issues and late last year invited the Secretary to the launch
on its paper by the Australian Attorney General
on use of Automated Decision making.
More recently Mr.
Kendall has been asked to chair a session at the Commonwealth Law Conference,
and the Secretary of CAPSL to Chair a day of a conference in Canberra,
Australia, on the Difficulties of In House Counsel in the Public Sector.
We have aConstitution which clearly demonstrates our objectives and whilst it may
from time to time need some minor amendment it provides us with a flexible and
workable document for the foreseeable future.
Since 1999 we have
established our own web site which is regularly updated.
The second phase of its
development, a more sophisticated and probably password Q&A base for swapping
ideas ) remains in abeyance pending experience with the maintenance and usage
of the first phase and, most relevantly, funding. It is already a valuable
tool for members who wish to keep up to date as well as a useful means of
promoting the Association to a wider audience, particularly potential members.
All the Association’s basic records are currently available on the site and
open for inspection without restriction. We also now have a regular newsletter
emailed or air mailed direct to each member.
currently stands at 27 Institutional members (10 associations and 17
government legal services) and about 140 individual members (though contact
with some has been lost due to changes in email address and the like) .
The members are
representative of a majority of the 54 Commonwealth countries and the
The vast majority of
members have been able to provide an email address which not only speeds up
communication but keeps administrative costs to a minimum.
Member recruitment has
not been as fast as we would have hoped.. We have only persuaded a very small
proportion of government legal services to provide information for our web
site and at the same time become institutional members. Those services that
have joined also include a number of state and provincial services not
originally in contemplation when the site was first launched and so the
proportion of national services is even smaller than the statistics would
retention also remains a problem for two reasons. CAPSL recruits well at each
Conference from the host nation but the majority who join, with little
prospect of attending future Commonwealth Law Conferences and association
meetings, soon fall by the way side.
A further and
significant difficulty stems from the use of email rather than postal
addresses. Members are mobile and whilst an air mail stands a chance of being
forwarded, computers are much less forgiving and a significant proportion of
emailed material is returned as undeliverable. If all members would only leave
a forwarding address for both purposes or advise the Secretary of any changes,
life would be easier and we would lose fewer members. I have embarked on
attempts to have a member in each jurisdiction try to track and or update each
jurisdictions members addresses. That will take time and in some places is a
not insignificant task.
The Future - The Challenge
Both now and in the
future CAPSL is faced with a number of problems some of which will require
discussion and or resolution at the London meeting. These will be considered
in the following paragraphs.
The first issue for
the Association is the election of Association officers for the
period 2005 to the next Conference. If current policy is followed then the
Chair will be taken by a senior public sector lawyer form the host nation for
Accordingly, steps are
in train to identify a nominee from Kenya who will be prepared to organise the
Association’s participation in that Conference as Mike Kendall has done for
this Conference in London.
It is hoped that our
liaison with Kenyan lawyers will identify a likely candidate and that such a
nominee will be available for election at our
meeting. We do not yet have any nominations for Secretary or Treasurer other
than the existing officeholders.. Any further nominations, also identifying a
nominee to become Treasurer, will have to be considered at the meeting
(Further details of the role of the Secretary can be obtained from the
Most important will be
the future financing of the Association.
The UK Law Society
Local Government Group agreed to fund the initial cost of establishing the
Association and continued to meet all its subsequent administrative costs
until 2003 when the NSW Law Society's Government Solicitor's Committee assumed
responsibility by way of sponsorship.. The UK Law Society Local Government
Group Trust Fund has also committed funds to cover the cost of developing both
phases of the web site. It seems unlikely that money for phase two will now be
available from that source and, in the longer term, I am considering whether
we will have to find some other form or sponsorship. That may include further
discussions with the NSW Law Society
CAPSL is presently a subscription free association with very modest costs.
The cost of collection
from individual members would so far almost certainly have increased
substantially our costs and involved an unacceptable additional amount of
Secretarial time. Collection from Institutional members might have been
possible. However at a time when we had funding and we were trying to develop
the membership base, both Individual and Institutional, the absence of
subscriptions was seen as a positive.
The introduction of
subscriptions for Institutional members may have to be reconsidered as the
best way forward, particularly if expenditure is going to increase
significantly. It could, however, be introduced for professional institutions
only or for government legal services only. In either case it would hopefully
be limited to those in the larger developed countries. Subscriptions for
Individual members, for both cost and time reasons, would still seem to be
It is presently the
case that the NSW Law Society's Government Solicitors Committee provides cover
for administrative costs.. Alternatively a charity or employer in the country
of either the Chair or the Secretary and Treasurer might be prepared to do
so. In this event and in either case it would probably be necessary to
Whether there would be
any scope for the sponsorship route is questionable but might be
worth a try if this is felt by the Association to be an acceptable option. The
obvious targets would be a legal practice with a significant public sector
practice (as is now becoming common in some jurisdictions) or a commercial
organisation in the publishing or IT field providing services to government in
return for advertising on the web site, its Newsletters, its notepaper and any
other publications. I have had some low key discussions with a representative
of the Government of Norfolk Island providing some form of sponsorship or
hastening of the website but negotiations have not led to any concrete
The last major issue is
the future of the web site. Will this be maintained by the
Secretary and, if not, by whom and at what extra cost? Mr. Robinson has been
prepared to carry on doing so for some time but CAPSL will soon have to find
an alternative particularly if we decide to go ahead with the second phase of
its development, but an early decision is needed as to the longer term.
The second phase of
development is intended to provide a secure section in which members can
publish papers on which they would welcome comments and problems on which they
would like advice from colleagues. This phase will hopefully not be difficult
to develop but it will increase administration and cost particularly in terms
of the issue and tracking of passwords.
If we adopt this option
we will have to consider aspects of the present site, eg should the
membership email address records move to the proposed secure section, in the
interests of reducing public access to names and email addresses or even for
reasons of privacy? Before a decision to proceed is taken we need to be
satisfied that such a facility is wanted and would be used. The apparent
limited present usage of the site by members raises doubts in this respect
although it could be that the existence of the facility would encourage
greater use of the site by members
Is there any need for
change to the newsletter and updating of the website?
We clearly need to
tackle the membership recruitment and retention problems. How do
we better encourage government legal services to sign up to the
Association as Institutional members and provide information for the web site
database? How do we better track email and or postal addresses of members?
Are there areas where
we can improve services to members within the terms of the
Associations objects and resource capacity? In particular are there any
training needs that the Association should try and promote beyond
those that already exist. Would there be support for say a biennial public
sector lawyers’ workshop to be organised by the Association in conjunction
with the Legal Director of the Commonwealth Secretariat? This would certainly
be more in line with our aims, but money is a problem.
I apologise if, as I
fear, I am unable to attend due to the ill health of my mother .
I quote some words from
our former Secretary, Christopher Robinson, which he used in Melbourne and
remain a very good explanation of CAPSL’s role “I have enjoyed my
involvement in the establishment and running of our Association although it
has at times proved to be a very frustrating job! I am sure that the
Association is a very necessary addition to the Commonwealth legal framework
and trust that it will continue to have the support of Commonwealth Law
Ministers and the Legal Division of the Commonwealth Secretariat both of which
are essential if the Association is to develop into the force for good
governance and the rule of law throughout the Commonwealth that I am sure it
will become.” If we can garner a bit of support I see CAPSL and having
potential to be a boon both for public sector lawyers around the Commonwealth
but also for the rule of law.