Tag Archive | "law society"

Election manifestoes

Where there is an election there are manifestoes, and both the Law Society and the Bar Council have been quick off the mark.

The Law Society has called on the next government to put access to justice at the heart of Brexit Britain. Society president Robert Bourns said: “Early legal advice prevents difficult societal and personal situations escalating. So if you’ve a problem with housing, how immeasurably better it is to solve that before you and your family become homeless – which is also likely to cost the taxpayer far more than the initial legal advice.”

On human rights, the Society wants to retain the Human Rights Act, but says that if it is replaced by a British Bill of Rights this must protect and enhance rights currently enshrined in UK law.

Regarding Brexit, the Society calls for negotiation of reciprocal rights of practice, audience and legal professional privilege for UK solicitors across the EU and in its courts. The Law Society’s calls include:

  • Reinstate legal aid for early advice, particularly in housing and family law.
  • Negotiate access for UK lawyers to practice law across the EU, base themselves in the EU, and have rights of audience and legal professional privilege in EU courts.
  • Ensure civil justice co-operation is maintained with the EU in the interest of consumers, families and businesses.
  • Combat modern slavery by enforcing the Modern Slavery Act 2015 and allocating the necessary resources to protect victims.
  • Scrap the current employment tribunal fee system.

Echoing the Law Society’s manifesto, the Bar Council says the government must review the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act, which greatly cut back the scope of legal aid. “The loss of nearly £1bn legal aid support has effectively disenfranchised a whole sector of society from obtaining access to justice. Government should reintroduce legal aid to assist vulnerable citizens who are currently left to fend for themselves…Justice is not a commodity and should never be a luxury available only to those who can afford to pay for it. Justice is not like any other public service.”

In a thinly veiled attack on Liz Truss, the Council stresses that the next lord chancellor must be someone whose “experience is combined with the requisite authority among ministerial colleagues to defend the independence of the judiciary.”

On Brexit, the Bar manifesto warns that: “Unless a strategic plan for the future of our legal services is devised and delivered, our exit from the EU will damage the international market value of the legal services sector, and undermine acquired rights and protections for our citizens and for our environment.” In exiting the EU, the government must develop a strategy for the legal services sector which recognises the value that Britain’s legal services contributes.

The Bar Council calls on the government to provide appropriate funding which recognises the value of the judiciary and those who work for the administration of justice so that standards of excellence can be achieved; and invest in infrastructure by making proper investment in the infrastructure of justice.

In addition, the government must remedy poor decision-making by those in authority who deal with vulnerable members of society. “For example, approximately half of those detained in immigration detention centres ought not to be there as is demonstrated by charities which provide legal assistance to those who cannot use lawyers.”

The Bar Council’s manifesto ‘The Value of Justice’ can be found at: http://www.barcouncil.org.uk/media/566731/manifesto_for_justicefinal.pdf

Posted in Law UpdatesComments (0)

Independence of the UK legal profession

The International Bar Association (IBA) presidential taskforce has presented a report which identifies a risk to the independence of the legal profession in the UK.

This is because the oversight regulator, the Legal Services Board (LSB), is a non-departmental public body whose majority lay board is appointed by a government minister, the secretary of state for justice. As the accounting officer for the organisation, the CEO of the LSB has a reporting role, ultimately to the secretary of state for justice.

Law Society chief executive Catherine Dixon said: “We must never take the independence of the legal profession for granted. In the UK legal professional privilege (LPP) is under attack. LPP is a cornerstone of our justice system in that it ensures a person can speak confidentially to their solicitor without the risk that confidentiality will be breached by a third party, including the State.”

She added: “A strong and vibrant legal profession is vital to ensuring that everyone has access to justice and that the rule of law is upheld. This important report identifies areas where legal independence is under attack across the world including in the UK.”

Dixon pointed out: “It is notable that in a recent LSB report outlining its vision of regulation this government body failed to recognise the importance of an independent legal profession, which if lost would undermine the very fabric of our society and our ability to maintain the rule of law. It is imperative in this context, and in light of the many threats to legal independence around the world, that the legal profession stands together.”

Access to justice, an essential ingredient of the rule of law, has suffered a serious blow with the attack on legal aid. At the Labour conference in Liverpool, the party’s shadow justice secretary, Richard Burgon, confirmed that a future Labour government would increase legal aid spending and abolish employment tribunal fees. The fees were introduced in 2013 and have been blamed for a 70% fall in employment claims.

According to the ‘Gazette’ it is understood that the pledge, expected to cost between £15m and £20m a year, has been approved by the shadow treasury and will be in any future Labour manifesto.

Also at the Liverpool conference, Burgon told a fringe meeting that Labour would increase funding to the legal aid budget, though he did not give exact figures. It is also understood that Jeremy Corbyn is sympathetic to the argument that legal aid funding should increase.

Burgon said: “Everything that will run through our approach will be about returning to the vision of the Attlee government, which placed legal aid as one of the four pillars of the welfare state. We have to avoid attempts to degrade legal aid and recipients of legal aid. Of course we would put more money in the legal aid budget to give it the respect and finance it deserves.”

Earlier in the conference, Lord Bach, who is leading the Labour commission to put together the party’s justice policies, said legal aid funding should be made available for inquests. The chief coroner has called for bereaved families to be given exceptional funding for legal representation in cases where the state has agreed to provide separate representation for one or more interested parties.

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New criminal justice advisory council

When the lord chancellor announced on 28 January that he would not press ahead with dual contracting for criminal legal aid he said: “I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system.”

The lord chancellor announced that he had “an ambitious programme of reform to our courts planned for the rest of this parliament. It is designed to make justice swifter and more certain. The reforms to our legal system, including taking more work out of courts, moving from a paper-based system to a digital platform, tackle unnecessary costs and reduce harmful delay, and these reforms will need the support of all in the legal profession.”

The new council is intended to be one of the mechanisms to assist him in understanding how these reforms could be effected.

The council’s full membership has not yet been announced, but its chair will be Gary Bell QC of No5 Chambers. Off to a flying start, Bell has invited anybody involved in the criminal justice system throughout England and Wales to contact him if they have matters they want the council to consider.

Writing for the Gazette online, Bell said: “The council will include a mix of barristers and solicitors as well as representatives from the Legal Aid Agency and the judiciary. Because it is very important that your views are reflected in as efficient and timely a way as possible it is essential that the membership of the panel reflects this need in its composition and location so as to be as efficient and focused as possible, but it is the views of individual professionals involved in the criminal justice system throughout the length and breadth of the jurisdiction that the panel would like to see.

“It is not a substitute for the Bar Council and the representative bodies who engage with the lord chancellor on a regular basis but an additional and important source of assistance.”

He goes on to write: “The council will not consist of members of representative bodies. It will be composed of individual barristers and solicitors in private practice who can express their own views without any external pressure brought to bear upon them. In that respect the council will be unique in that any findings and recommendations it makes will be those of the combined profession rather than representing the narrow interests of one branch or the other.”

He sees that the job of the council is to “consider all matters affecting efficiency, delay and waste within the system and make recommendations to the lord chancellor as to how best they can be eliminated. It will draw to the lord chancellor’s attention what it considers to be errors or abuses emanating from the system itself and any it encounters coming from the professions. In other words, it will be open and fair to all sides but also blunt and realistic.”

His article concludes: “The panel is not concerned with personalising criticisms, wherever they could legitimately be made in any part of the criminal justice system, but in addressing issues: using the people who really know – and that is you.”

Law Society president Jonathan Smithers said: “We would encourage our members to engage with this advisory council, as it is a good way to ensure that our concerns about inefficiencies in the criminal justice system are made known at the highest levels of government.”

Posted in Criminal JusticeComments (0)

Discriminatory residence test for legal aid summarily thrown out

Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

Posted in Civil Liberties, Legal AidComments (0)

The Court of Protection

The Court of Protection (COP) was established under the Mental Capacity Act 2005. It has jurisdiction over questions relating to both health and welfare and financial affairs, and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.

This week the Court ruled that people unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty.

In a judgement, achieved by way of four test cases (JM & others), where no appropriate representative could be found for reasons including resource constraints, Mr Justice Charles, vice president of the Court of Protection, said: “I do not agree with the Secretary of State that it is appropriate for the COP to direct the applicants to take steps to provide or identify a person or persons who the COP could so appoint in these test cases or cases in the class represented by these test cases. The main reasons for this are:

  • the applicant authorities have no statutory duty to do this,
  • there is at present no available pool of people who are ready, willing and able to accept such an appointment by the COP,
  • absent constructive discussion with and help from central government there is no reasonable prospect that any such pool of people will or should be created by applicant authorities within a    reasonable time-scale or at all,
  • the applicants in the test cases have expressly confirmed that as they have no statutory duty to do this they will not do it, and
  • it is unlikely that other applicant authorities would take a different view.”

Mr Justice Charles ruled that: “In my view, the primary responsibility to provide a resource that enables the COP either to make such appointments or to otherwise meet the minimum procedural requirements in these test cases and cases in the class they represent falls on the Secretary of State, or on the Secretary of State together with the applicant authorities.”

In this unprecedented judgment, Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

As reported in the ‘Gazette’, Law Society president Jonathan Smithers said: “Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in a hospital, care home or a family home….The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authorities’ and government budgets are stretched,” he added. “But those who are least able to defend themselves should not be sacrificed on the altar of austerity. Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

The full text of RE: JM, AMY, JG, MM and VE, Neutral Citation Number: [2016] EWCOP 15, can be found at:

Posted in Civil LawComments (0)

Legal aid contract announcement

The MoJ never lose the ability to leave you speechless.

The announcement of winners of new legal aid contracts was promised by the end of September. Firms were expecting to be told last week via the Legal Aid Agency’s Bravo e-tendering portal whether they have won one of a reduced number of contracts to provide 24-hour cover at police stations. But what a cliffhanger that turned out to be. We were told Monday, then Tuesday, then Wednesday. On Wednesday we were told “soon” On Thursday we were told “by the end of the week.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

Insufficient bids for new legal aid contracts in three procurement areas

In an upbeat statement last week the Legal Aid Agency (LAA) announced that sufficient bids had been received in more than 96% of the procurement areas in England and Wales and competition will be proceeding.

In total the LAA received 1,099 bids from more than 500 organisations across the 85 procurement areas before the tender closed on 5 May 2015. Read the full story

Posted in Legal AidComments (0)

Gove doesn’t care either: Next steps for the criminal legal aid market

Yesterday Shailesh Vara, Parliamentary Under-Secretary of State for Courts and Legal Aid, presented a written statement to the House of Commons to confirm next steps for the criminal legal aid market.

He said: “There is a pressing need to ensure our criminal justice system performs more efficiently” and “there is no doubt we still have a generous system compared to other countries. The continuing need to reduce the deficit means that we must make further progress. We must secure greater efficiencies whilst maintaining a high quality service and guaranteeing that everyone accused of a crime has the same access to a legal aid lawyer as they do now.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

Protection for legal professional privilege

Legal professional privilege (LPP) is a central principle of British law which protects confidential communications between lawyers and their clients. It is one of the oldest, well-established and respected features of English common law since the 16th century. It is essential to the rule of law and the fair administration of justice.

Exchanges between lawyers and their clients enjoy a special protected status under the law. LPP is important for everyone who should be able to get confidential advice about legal rights and obligations. No one involved in a legal claim is allowed to eavesdrop Read the full story

Posted in Criminal JusticeComments (0)

Government consultation process ruled ‘so unfair as to result in illegality’

Mr Justice Burnett was as good as his word. At the end of the judicial review hearing he said he hoped to have judgment ready ‘as soon as possible’ and ‘all being well’ by the end of the month. Last Friday saw his judgement.

And what a judgement. Referring to two economic reports, one from Otterburn Consulting and the other from accountants KPMG, he said: “In the context, in particular, of a decision which would so profoundly affect the way in which the market in criminal legal aid operates, indeed pose a threat to the continued existence of many practices, in my judgment it was indeed unfair to refuse to allow those engaged in the consultation process to comment upon the two reports. Read the full story

Posted in Criminal Justice, Legal AidComments (0)

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