Category Archives: Legal Reform

Female Barristers Could Get Boost From Shared Leave

Female Barrister

Female BarristerProposals from the Bar Standards Board (BSB) designed to give a boost to female barristers have now received the backing of the Bar Council. It is believed the proposals could help encourage women to maintain their careers at the bar, and increase their chances of rising to more senior positions.

The proposals come not long after the latest annual diversity report revealed that women, along with minority groups, are still underrepresented at the bar. The lack of female barristers is particularly pronounced at upper levels, with women making up a disproportionately small percentage of those in senionr roles such as Queen’s Counsel.

The BSB’s proposals would represent an extension of shared parental leave rights that were introduced nearly two years ago for employed barristers, making the same rights available to self-employed barristers as well. The current system, which has been in place since April 2015, allows leave to care for a new child to be shared by both parents through the first year after birth and adoption. This allows barristers to share the responsibilities and the time off work more equally, rather than the careers of women being affected more profoundly than those of men during this period as is traditionally the case. At present, however, chambers are under no obligation to make these shared leave rights available to the self-employed – something that the BSB’s proposals would change.

The BSB published its consultation on the subject in November 2016, and a consultation response from the Bar Council was published yesterday. In its response, the council indicates its support for the proposals, saying that they might present challenges for chambers in the short term but would ultimately help the bar to take a place at the “forefront of advocating full equality for all its members.”

The Council also expressed the view that access to shared parental leave for self-employed as well as employed barristers might be an aid to recruiting female talent to the bar. In its consultation response, it said that the measures “would probably act as a draw to recruitment of the best and most talented women, who would otherwise not consider a career in what is still a male-dominated profession, especially at the more senior levels.”

In the consultation, it was proposed that self-employed barristers should have access to shared leave if their partners are employed, or if their partners are also self-employed barristers at either the same or different chambers. However, the Council expressed concerns about fully extending shared parental leave to every self-employed barrister, believing this would be financially costly for chambers.

SRA Survey Shows Positive Signs for Personal Injury Sector

A survey by the Solicitors Regulation Authority has revealed that the UK’s personal injury sector is doing well despite the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). The survey gathered information and opinions from a wide range of relevant sources, including over 250 legal firms operating in the sector, and identified a number of positives.

As well as hundreds of legal firms, the survey questioned the judiciary, regulators, representative bodies, insurance companies, and trade associations. The findings of this survey were recently published, and while there were some areas of potential improvement identified the SRA’s research has suggested that, on the whole, the industry is doing well.

The personal injury sector is in many ways a broad sector. One of the most prevalent examples is claiming compensation for accidents at work, or indeed any injury or illness, that was the result of an employer taking insufficient measures to provide a safe working environment. However, it also includes just about any case where one person has been physically injured and it was the fault of a third party, such as accidents caused by careless driving, or cases where a business has not maintained a safe environment for customers.

In such cases, the injured party is entitled to a financial settlement from the negligent party, both to reimburse any financial costs associated with the injury and to act as compensation. A large part of the personal injury sector is made up of firms that specialise in these claims, or even specific kinds of injury claim such as workplace accidents or traffic accidents.

It was expected to be one of the sectors that was particularly likely to be hit by the 2012 act, specifically by the removal of certain kinds of fees, but the survey suggests that personal injury firms have adapted well to the changing landscape. Overall, the SRA concluded from its research that the sector is “generally working well” in a post-LASPO legal landscape.

The report also suggested that the number of frivolous and outright fraudulent claims is decreasing, though this still remains a concern. This decrease is welcome news for firms operating in the sector as, unlike most other areas of legal practice, fees are often only charged on the success of a claim and as a percentage of the settlement awarded.

The report also suggested that the relationship between legal firms and other relevant companies such as insurers is growing more positive. Among the concerns raised was the possibility that some firms may be diversifying into new areas of personal injury practice without the desirable amount of expertise.

Legal Services Board Voices Concerns About Price Publishing

The Legal Services Board (LSB) has expressed reservations that legal firms should publish their “average prices.” The LSB is concerned that rather than helping consumers, which is the intention of the recommendations, the data could instead prove misleading and confusing.

The recommendations in question were made by the Legal Services Consumer Panel, which was looking into methods of “opening data” from the legal industry. The panel suggested that it should be made a requirement by approved regulatory bodies that firms and individual practitioners within the legal industry should make information on their prices accessible. Specifically, it was recommended that they publish the average cost of the services they provide, including disbursements, on their website, and also be bound to produce this information if it is requested.

The LSB, in response to these recommendations, accepted that there is evidence to suggest “weak price transparency” in the legal industry. However, the board recommended that “careful” appraisal of the benefits and costs should be carried out before regulators consider making the publication of average prices a requirement.

“It is not clear at this stage,” the LSB said in a letter to the panel in response to these recommendations, “whether publication of average prices for particular legal services would be more helpful than misleading for customers.”

In its letter, the LSB also spoke of the “burden for practitioners” that the need to calculate and publish these averages would create. Furthermore, the matter of reaching an agreed and auditable methodology for calculating average prices, the LSB said, “could be challenging.”

Nonetheless, the Legal Services Consumer Panel’s recommendations were not outright opposed by the board either. Rather, the LSB said that it could not “reach a firm view on this recommendation” without it being subjected to further discussion and more detailed analysis of evidence.

The Legal Services Consumer Panel also made a number of other recommendations. These included the publication of complaints records, and the suggestion that regulators could use a “mystery shopping” approach to assess the quality of legal advice given by practitioners on sensitive or high-risk legal issues and then publish the results of this research. The LSB also expressed reservations about this suggestiion, saying that regulators “cannot (and should not) directly oversee practitioners when they serve their clients.” The board supported the principle of improving the understanding approved regulators have of the quality of advice being given in the legal industry, but said that the proposed research could be an expensive way to “only provide a snapshot in time for a small sample of practitioners.”

Human Rights Law & Personal Injury Claims

Recent years have seen several far reaching reforms enacted to the UK justice system.

Such reforms have encompassed legal aid funding, legal reform, and an emphasis on arbitration and mediation in courts and tribunals, which will further impact upon the provision of justice. 2014 also saw the implementing of new contracts for police station solicitors; the tender process, and the actual contracts, were widely condemned and criticised by many in the legal sector.

The overall impact of such reforms has been to essentially deny justice to many thousands of average, households in the UK, a fact which the legal sector has raised in no uncertain terms. Most of the legal reforms are ultimately (but not entirely) a simple cost cutting measure, amidst reduced public funding and a slow, painful economic recovery. However, to an extent, the legal reforms, and the ensuing limited access to justice, are, ironically, potentially illegal.

Human Rights law, both domestic and EU, requires and allows for a full and impartial trial, with adequate and proper legal representation throughout any legal proceedings. Articles 5 and 6 of the European Convention on Human Rights (ECHR) addresses this, as does the Human Rights Act (1998). The recent legal reforms mentioned, however, seriously challenge that fundamental legal and human right.

A good example here is employment law. This is an increasingly touchy and emotive area of law as job security and zero hours contracts are a major current legal issue. Aside from that, employers have a responsibility for the health and safety of their staff, visitors and contractors in the workplace. If health and safety rules and regulations are breached, there can be accidents and injuries at work. Such accidents can range from a few cuts and blisters, to sprained ankles, to broken limbs, to long term chronic medical conditions developing. The result of an injury at work can be to cost the business greatly in productivity and lost working hours, as well as on-going support for injured employees; HSE figures for 2012/13 show that the estimated cost of workplace injuries and health issues arising was just over £14 billion. Of course, economics aside, that is nothing compared to the human cost for those actually injured.

The law enshrines the right of the injured party to make such an injury at work claim, under tort and civil law. Amidst such legal reforms, it would be very hard for the average employee to take their legal claim to court. Although the (2014) average wage nationally in the UK was £26,500, inflation, debts and the rising cost of living severely reduces the amount of money an average employee would have fund a legal case. Further, the great majority of unskilled workers (often in industries prone to severe workplace injuries) actually earn more in the £10,000 – £13,000 bracket (2014 figures), or less. Amidst the legal reforms, bringing a simple workplace injury claim to court is therefore far beyond the means of the average employee.

In the personal injury sector, however, many cases continue to be funded by Conditional Fee Agreements (CFA). With a CFA, litigants only pay their lawyers on the understanding that their case will be won, and that compensation will be awarded. Litigants do not pay if their case is unsuccessful. If it were not for the system of CFA funding, many personal injury litigants, be they injured at the workplace or indeed elsewhere, would simply not be able to obtain the justice that they are entitled to under law.

Employment law, and personal injury law aside, there are many areas of law (such as family) where it is simply too costly in time, effort, procedure and money, for people to obtain justice- contrary to human rights law.

The legal sector has tried to protest this, and to raise this very serious concern. The government is more concerned with the Budget and economic recovery, as opposed to such legal niceties. The fact remains that the reforms are potentially illegal, as they deny justice to many, in breach of human rights law.

One government response has been to put in the 2015 Queen’s Speech plans to reform and replace current human rights legislation with a new Bill of Rights or similar. In that fashion, with new human rights principles, the government can no longer be said to be acting in breach of current human rights provisions that enshrine the right of all to seek a legal remedy in court.

New Dispute Resolution Model and Online Help System Proposed

Online Help

A report from human rights group Justice, entitled Delivering Justice in an Age of Austerity, has proposed a new model for dispute resolution. The model is designed to deliver better, more equal access to justice in a more cost-effective way than the current system.

The proposed process would see the handling of civil claims supported by an integrated information service encompassing both the internet and a telephone helpline.

Registrars would form an integral part of the model, managing cases proactively. A registrar would also be trained to have in-depth knowledge of specific areas, in order to provide specialist help with disputes of those kinds. These registrars would have to hold recognised legal qualifications, and would have the power to refer cases to a judge, strike out statements, or to undertake either mediation or early neutral evaluation.

In many ways, the recommendations made by Justice for the proposed new dispute resolution model in many ways line up with previous recommendations made by the Civil Justice Council in February. However, Justice put forward the possibility of a wider remit for a dispute resolution process using this model compared to the Civil Justice Council. The report suggested that this kind of system could be used at the first instance across tribunals as well as civil courts.

In their report, Justice expressed the opinion that a model of this sort could ultimately go on to deliver cost savings over the longer term. It would also provide a fairer and more equal system for those claimants who lack access to professional legal advice, particularly following the ever-controversial cuts to the legal aid budget. Indeed, the report was produced in response to legal aid cuts as well as with cuts to the budget of the HM Courts & Tribunals Service, which have left many individuals without access to professional legal advice and assistance and therefore struggling to properly enforce their rights.

The integrated online and telephone advice service, in particular, is pushed by the report as a way to provide accessible and professional legal advice across the board in a way that is cost-effective for the public purse. According to the report, it would take two years to develop the online service following the agreement of sufficient funding.

Andrew Caplen, president of the Law Society, said that he thought the proposals represented an “interesting development” in the debate surrounding the future of legal advice. However, he also said that the proposed technological solution was not a substitute for actual legal representation.

Caplen said: “Quality representation, particularly when one side is represented by a lawyer, is essential. Our 2015 election manifesto emphasises our call for the next government to ensure that every individual has effective access to justice.”

Call for Better Protections From “Unlawful” Government Snooping

Snooping

The government has admitted to having “unlawful” policies on intercepting communications that take place between lawyers and clients. The admission has prompted a call from professional bodies in the legal industry for better protection of professional privilege.

According to emails sent by the Treasury Solicitor’s Department and released by Reprieve, a charity specialising in legal activism, “since January 2010 the policies and procedures for interception/obtaining, analysis, use, disclosure and destruction of legally privileged material have not been in accordance with human rights legislation.”

The government admitted that its policies were unlawful in the course of the Investigatory Powers Tribunal’s proceedings. Specifically, it made the admission in submissions as the tribunal hears the case brought against the government Abdul Hakim Belhaj and Fatima Boudchar, two Libyans who were returned to their home country in 2013 as part of a joint UK-US operation. Filing their case in 2013, Belhaj and Bouchar claimed that confidential communications with their solicitors had been intercepted by the UK’s intelligence service while they were detained. The government was forced to admit in November that this was indeed the case.

Cori Crider, the lawyer who is representing Belhaj and Boudchar, accused the government of allowing intelligence agencies an excessive degree of freedom to intercept conversations between lawyers and clients.

The Law Society was also critical of the government following the admission that policies were not lawful. The Society said that the documents released to the tribunal demonstrated that the laws currently in place to protect professional privilege are not sufficient.

In a statement, the Society said: “The absence of explicit protection for legal professional privilege in the Regulation of Investigatory Powers Act 2000 (RIPA) has been of longstanding concern to the Law Society and we have raised our concerns with the Home Office.”

The statement went on to say that “Legal professional privilege is essential to the administration of justice and a pillar of rule of law.” The Society stressed the importance of allowing people to be open and honest when discussing matters with their lawyer without being afraid that the information revealed in these conversations would later be passed on to a judge or brought up in the courtroom.

The Bar Council was similarly critical, with bar chairman Alistair MacDonald QC saying: “Spying on conversations protected by legal professional privilege is fundamentally unacceptable and constitutes a breach of the rule of law.”

Recent legislation introduced to combat terrorism, he said, had done much to undermine “this centuries-old principle.”

Ministry of Justice Will Proceed With Changes to Criminal Legal Aid

The Ministry of Justice (MoJ) has announced that it will continue with plans to reform the criminal legal aid system. Next summer will see further fee reductions of up to 8.75%,and two-tier legal aid contracts are also to be implemented.

The MoJ also announced that the proposed number of tender contracts will be raised from 525 to 527. The tender process started today and is set to continue for two months, with bidders set to be notified of the MoJ’s decision in June of next year. This information as contained in the MoJ’s response to the consultation titled Transforming Legal Aid.

Like previous reforms to the legal aid system, the upcoming changes to criminal legal aid have not proved entirely popular among professionals within the industry. For example Andrew Caplen, president of the Law Society, said that solicitors have been “extremely disappointed” by the MoJ’s decision to proceed. Caplen also questioned the government’s opinion that criminal legal aid work would, in the future under the reformed system, continue to remain sustainable.

Two other groups, the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors Association, have said that they are looking into the possibility of mounting a new legal challenge with the intention of halting the plans. A previous challenge by these groups led the high court to decide that criminal legal aid reforms had been introduced unlawfully, and it was this which led to the Transforming Legal Aid consultation.

The consultation placed the reports carried out in February by KPMG and Otterburn Legal Consulting Ltd under particular scrutiny. It looked at the assumptions used by the firms in deciding how many duty provider contracts to make available.

Based on the responses received by the consultation, the Ministry of Justice decided that no action was necessary beyond the slight increase in the number of contracts. Respondents, it said, had not provided new evidence which required any further amendments.

Despite the concerns of solicitors and professional bodies, the government continues to defend its new model. It provided a summary stating that firms would be able to confidently put resources into efforts at restructuring “in the knowledge they would be in receipt of larger and more certain volumes.”

The government’s summary went on to claim that “This contracting approach also gives the government the assurance it needs that those accused of a crime will have access to a lawyer by maintaining a sustainable legal aid service.”

Clegg Calls for Journalists to get Public Interest Defence

Newspapers

According to Nick Clegg, journalists should be afforded a defence if they break the law in the course of pursuing information that is in the public interest. The Lib Dem leader suggested that journalists should be able to break some data protection, computer misuse and bribery laws in the pursuit of such information without fear of prosecution.

Clegg’s comments follow concerns about the way police have pursued those who provide information to journalists, which have led these areas of legislation to come under scrutiny. In order to pursue sources, police have been controversially gaining access to the phone records of journalists.

Clegg was speaking at his monthly press conference, ahead of an upcoming House of Lords debate where this kind of law will be proposed. The proposals will take the form of amendments to the crime and criminal justice bill.

Clegg suggested that “You probably need to put [the public interest defence] in the Data Protection Act, the Bribery Act, maybe one or two other laws as well, where you enshrine a public interest defence for you, for the press. So that where you are going after information and you’re being challenged, you can set out a public interest defence to do so.” The amendments tabled in the upcoming debate will propose the introduction of such a defence to both of these acts along with the Computer Misuse Act.

Sources within the Lib Dem party suggest express the opinion that the amendments may not be pushed to a vote, and that there was a good chance of reaching an agreement with the conservatives “in the not too distant future” that could see government proposals put forward. The official spokesman for the Prime Minister, when asked about the matter, said the government would look into matters thrown up as the Regulation of Investigatory Powers Act (RIPA) comes under review.

Separately from these claims, Clegg has also expressed support for the review if RIPA, and the possibility of greater protection for journalists whose records may be accessed by police. Clegg said on the matter that it is “incredibly important in a free society that journalists should be able to go after information where there’s a clear public interest to do so, without fear of being snooped upon or having all of their files kind of rifled through without clear justification.”

A separate proposed amendment to Section 55 of the Data Protection Act would see the sentence for accessing personal data unlawfully increased. Where currently the maximum penalty is a fine, this amendment would see the possibility of probation and community service. In more serious cases, it would also introduce the prospect of up to two years’ imprisonment.

New Service Helps Couples Fund Separation

Resolution Logo

In the face of legal aid cuts, many couples are struggling to fund their divorces and a lot of related court cases involve no professional legal representation at all. To combat this Resolution, a national family lawyers’ organisation, have teamed up with Iceberg Client Credit to offer manageable funding options to separating couples.

In recent months, couples pursuing a divorce have come under attack financially from two fronts. Apart from the legal aid cuts, which have removed legal aid from many of the cases in family courts, the 2014 budget has also hit these couples hard. Specifically, the budget included changes to the way tax relief works on properties that are owned by divorced or separating couples. Previously, a partner could claim tax relief on such properties for a period of three years even if that property was being occupied by the other partner, as long as they did not declare any other home as their tax free residence. Now, the tax relief period has been cut in half to just eighteen months, leaving many couples worse off in the early years of divorce.

There are some funding options for divorces are already on the market, but these are largely aimed at those on higher incomes or on more costly cases. The new scheme offered by Resolution and Iceberg is unique in that it is available to couples on low incomes who are struggling to obtain expert advice or representation during proceedings since the legal aid cuts hit.

The service is available to legal firms that are members of Resolution and to their clients. The loans will carry preferential rates, and only after proceedings are complete will repayment be due. The introduction of this service has been widely welcomed as it is beneficial for both clients and legal professionals. Clients get the obvious advantage of manageable loans to fund expert help with their divorce proceedings, while legal firms are able to offer vital funding to their clients without putting their own assets at risk.

Jo Edwards, incoming chair of Resolution, expressed delight at the successful implementation of the service. Edwards said: “This will help our members to help more people – something we’re all keen to do, but has become more challenging since the cuts to family legal aid just over a year ago.”

The Law Society also welcomed the partnership between Resolution and Iceberg, with a spokesperson saying that “any initiative which helps solicitors to make their services more accessible to potential clients in the wake of legal aid cuts is welcome.”

“Crisis” Facing Magistrate Recruitment

According to a new report from justice charity Transform Justice, the recruitment of magistrates within the UK is in crisis. The report found that magistrates are now older, fewer, and less diverse than they were at the turn of the millennium.

The report, Magistrates: Representative of the People?, suggested a number of measures to deal with the crisis. These included giving the Judicial Appointments Commission responsibility for recruiting new magistrates, and introducing positive discrimination to help boost diversity.

The study identified a number of points of concern within the current magistracy. For instance, 55.5% of magistrates are now over the age of 60, and in some areas more than 60% are aged 60 or over. This compares to only 32% in 1999, indicating that magistrates are getting older. At the opposite end of the scale, a mere 3.2% are under the age of 40.

Magistrates are also disproportionately middle class, according to the report. Only 28% of the UK population is employed in a professional occupation, a managerial role, or as a senior official. By contrast, this group accounts for more than half of all magistrates. On the other hand, sales professionals and those employed in customer services account for just 1.5% of magistrates despite representing 8% of the UK’s population as a whole.

The report also identified concerns in the representation of minority groups amongst the magistracy. The proportion of magistrates from an ethnic minority group is currently 6% lower than that of the entire UK population. In 1999, the figure was just 2% lower, suggesting that as time goes on magistrates are becoming less and less representative of the UK population in ethnic terms.

Taken together, this data means that magistrates are not representing the population of the UK, and that they are failing to do so on a number of fronts. They are not as diverse in ethnicity, age or class as the UK people. However, the report also discovered that the magistracy is shrinking – something it attributes to a “recruitment freeze.” Last year a mere 300 people joined the magistracy while 2,000 left. Since 2007, numbers have declined by 28%.

Lay magistrates, the report claimed, have not seen specific efforts to improve diversity in the ways that have been applied to salaried judges. The report suggests that this accounts for much of the problem, and suggests tactics such as positive discrimination to rectify the issue. The report also proposes making it easier for those in work to sit as magistrates, greater sentencing powers, and the introduction of 10-year fixed tenures.

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