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.”

Family Lawyers Expect January Divorce Surge

Family law firms are braced for a surge of divorce enquiries that is expected to last throughout January. For many family solicitors January is the single busiest month of the year, with divorce enquiries up to 25% higher than at any other time of year.

Many will say that Christmas is a prime season for arguments, and it has long been held as popular opinion that the season can bring an end to relationships. The January surge in divorce enquiries is perhaps the most concrete piece of evidence supporting this idea, as most theories hold that this relates to the Christmas period in one way or another.

Christmas can be a stressful time. Families can find themselves pushed for time and also under financial pressure thanks to the need to buy gifts and the necessary supplies for celebration. The result can be arguments, sometimes in front of the kids. While this is obviously not enough to bring relationships to an end in itself, it can impact significantly on relationships where tensions already exist. This can be the final step in leading troubled couples to decide that a clean break is the best way forward.

Christmas also leads families to spend more time together, and this can be a problem for couples who have become distant. While such couples were likely unhappy in their marriages already, they sometimes do not feel under pressure to end the relationship completely as the distance between them prevents uncomfortable tensions. In such circumstances, they may feel they should stay together for the benefit of their children. When the festive season arrives and they suddenly have to spend more time together and even act as if everything is fine for the sake of children and family members, this can create serious tensions and prompt them to bring the relationship to a close.

However, another theory holds that, while Christmas still plays an important role in the January rush of divorce enquiries, the festive season is not actually to blame for the relationships coming to an end. Many couples may have already decided some months before that the relationship was not working and they were going to begin divorce proceedings, but put off taking action. In particular, a recent study showed that around 20% of married parents seeking divorce admitted to delaying the things until after Christmas for the sake of their kids. In these cases, Christmas causes enquiries to be made in January rather than at other times of the year, contributing to the rush, but is not actually the factor that prompts the relationship to come to an end.

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.

Solicitors to Feature on Comparison Websites

Comparison

Information on solicitors is to be passed to comparison websites in response to calls for more information on practitioners of law to be made accessible. The Solicitors Regulation Authority has agreed that, by the end of this year, it will begin sharing data it holds with third party comparison sites.

The calls that prompted this move came from the Legal Services Consumer Panel. They felt that online registers should have a greater amount of useful information on solicitors made available to them. The Panel was first set up after the implementation of the Legal Services Act, and has considered the publication of this kind of data to be a key aim from the beginning.

In a letter sent to the Legal Services Consumer Panel in response to this, executive director of the SRA Crispin Passmore detailed steps that will be taken to improve in this area. Passmore said that, by Christmas, a “data extract” will be in place. This will most likely include details of any disciplinary action that a given firm may have faced in the past. It is also expected to include information on the size of the firm. This initial move will be followed by the development of a complete online register, expected to be completed before the end of 2015. The complete register will be able to feed data directly to comparison sites.

Other information which the Legal Services Consumer Panel suggests may later be made available include pricing information and feedback from previous clients.

The SRA are not alone in agreeing to share data towards this end. The Intellectual Property Regulation Board (IPReg) and the Council for Licensed Conveyers have also agreed to make information they hold available in a form that can be used for this purpose.

The Legal Services Consumer Panel has singled out eight comparison sites which, based on self-assessment, it feels meet the required standards. It stresses that this does not form an endorsement of those sites specifically.

According to Elizabeth Davies, who chairs the Panel; “Not every regulator is fully on board yet, but this progress is really positive and there’s scope to build on it in the future…

“The quest for open data has been at the heart of the panel’s policies since 2011. Transparency is absolutely essential for consumers if they’re going to be able to make informed choices, protect themselves from harm and have confidence in the regulators.”

Research Highlights Stress Problem in Legal Profession

Recent research from Lawyer 2B has identified huge amounts of stress among legal professionals factors behind the problem include long hours, poor managerial support, and difficulty creating an effective work-life balance.

In recent times, legal firms have made efforts to improve the experience of staff when it comes to stress. Programmes have been introduced by many firms to help maintain the mental health of employees. Hagan Lovells pledged to carry out a review of its policies around the management of employee stress after an IP partner committed suicide. This resulted in the firm’s counselling service being moved on-site. Clifford Chance are another example, having announced a firm-wide rollout of its trainee anti-stress programme in April. Despite such moves, however, the research suggests that stress continues to be a major issue for professionals in the industry, particularly young lawyers.

The survey was carried out in April and looked at a number of factors to get a picture of the state of the industry. Among the areas examined were a number of key stress-inducing factors, working hours, perceived employer commitment to providing a work-life balance to employees, and the stress-busting initiatives that firms put into place.

One interesting and, for some, unexpected finding of the survey was that stress is not necessarily linked to long hours. However, many respondents found that high volumes of work were a key factor at causing stress, and long hours were certainly prevalent within the industry. 36% of respondents reported a typical working week of 46-55 hours and 20% said they worked between 56 and 65 hours. A further 11%, mostly working in a corporate, finance or litigation practice, reported working 66 hours or more in a week, and 2% exceeded 75 hours.  The longest hours are worked by Magic Circle lawyers across all seniority levels.

Nonetheless, support from the firm for which they work was a far more central factor than working hours. The worst-performing firms in this regard were generally those from the US. Of those lawyers working for a US firm in London that responded to the survey, 70% felt that their management did not make any real effort to encourage a work-life balance.

Given the various recent moves by major city firms to combat stress, the discovery may come as a disappointment to some. The problem could potentially be one of awareness. According to the findings of the survey, a mere 17% of lawyers are aware of their firms’ stress management initiatives.

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.”

Male Lawyers Over 25 Earn More than Female Counterparts

Female Lawyer

Concerns about a pay gap within the legal industry have been raised following the release of research by Eversheds, a global legal firm. Over the age of 25, female lawyers earn significantly less than their male counterparts.

Interestingly, female lawyers under the age of 25 actually earn more than their male contemporaries. However, this is quickly reversed, and after the age of 25 takes the form of a more conventional pay gap with men earning more than their female contemporaries.

Over the age of 25, female lawyers earn 11% less than men. By the time they reach their mid-30s, they earn a full 25% less than their male colleagues in the same age group. This has led to fresh concerns about whether the legal industry is doing enough to support female talent, and to retain skilled women within the industry.

The same research examined the long-term career plans of lawyers. This aspect of the study revealed that only 34% of women intend to stay in a law firm for their remaining career, and only 57% aspire to become a partner in a law firm.

It is possible that this pay gap contributes to the lack of satisfaction among female lawyers with their profession. However, it is worth noting that the study also found men were dissatisfied with the legal profession, albeit to a lesser extent.

Reasons for dissatisfaction with the legal profession for both genders include unrealistically long working hours and a resulting poor work/life balance. Many lawyers stated an intention to become established enough within the legal field to seek an in-house role. This is generally considered an option that offers greater flexibility, more manageable hours, and a better work/life balance than working within a law firm.

Indeed, working hours seem to be a key concern that keeps people of both genders from aspiring towards a partnership. Trainees have to put in long hours, but there is a general feeling that this should give way later in your career and that former trainees should be rewarded for their work with more manageable hours. Instead, however, there is a general feeling that becoming a partner involves losing most of your free time to work.

The lack of flexibility and poor work/life balance is heightened for women by the industry’s lack of flexibility regarding childcare. This has led many women within the industry to find that, in spite of promises to the contrary, the idea of continuing to work on a suitably flexible basis after giving birth is difficult or impossible to achieve.

“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.

Lawyers Unite to Oppose Legal Aid Cuts

legal-aid-protests

 There has been debate around the possibility of cuts to legal aid for some months, with many people opposing the impact these cuts could have on ordinary people in need of legal representation. Now, lawyers and legal groups with a professional interest in the area of legal aid have formed a new group to oppose the potential cuts.

The new group, known as the National Justice Committee, and it is made up of a number of member organisations. These include the London Criminal Courts Solicitors’ Association, Criminal Bar Association, Criminal Law Solicitors’ Association, Justice Alliance and the Criminal Law Solicitors’ Association. The Bar Council and the Law Society will also be in attendance, but in the capacity of observers rather than participators.

A statement was issued to announce the formation of this group. The statement said that the committee “notes the devastating effects of legal aid cuts and restrictions in social welfare law, family law and immigration law.”

The statement went on to say that the new committee “opposes all further legal aid cuts and proposals to weaken the ability of the ordinary citizen to challenge unlawful decision-making.” It suggested that if the cuts to legal aid go through, they “will diminish our social fabric by reducing access to justice.”

The group has also described the proposed cuts as “unnecessary and counter-productive.” It has claimed to be able to provide evidence in support of claims that these cuts would not ultimately result in savings, and that there were ways that savings could be achieved without making such cuts.

During the months that these issues have been under discussion, concerns have emerged over the sufficiency of legal aid even in its current form. For example, in the later part of 2013 it emerged that legal aid remains inaccessible to over 50% of domestic violence victims. Strict rules around requirements for certain forms of “qualifying evidence” prevent many victims from qualifying for legal aid. There are concerns this may lead to them being unable to seek legal assistance at all, and perhaps feeling unable to escape abusive relationships.

When such concerns are leading many to believe that legal aid should be rolled out to more people, concerns about the effects of cutting the available funds become even keener.

The new National Justice Committee now intends to set a date for a day of protest action, expected to take place sometime in late February or early March. There was previously a half-day of protest action held earlier this month.