Tag Archive | "the Bar Council"

The Brexit Papers

Brexit could undermine London’s status as a highly profitable international legal centre, according to the Bar Council, which represents barristers in England and Wales.

The Government must put the public interest at the heart of its Brexit strategy, the Bar Council has warned as it publishes the Brexit Papers, written by members of the Brexit Working Group set up by the Bar Council to examine the range of complex issues arising from Brexit and to help the Government identify the legal and constitutional priorities.

Led by the Chair of the Brexit Working Group, Hugh Mercer QC, the group has drawn on the combined expertise and experience of the profession across a wide range of practice areas. Mercer said: “EU law currently impacts nearly all areas of life. We need a plan to make sure that people do not suffer from uncertainty and ultimately end up worse off. If we are going to minimise the adverse impacts on UK citizens, a huge number of highly technical areas of law need looking at in fine detail.”

The Bar Council did not take a position on leaving or remaining in the EU. Chairman of the Bar, Chantal-Aimée Doerries QC said: “There has not been a more profound legal and constitutional challenge in living memory with which the UK Government has had to grapple, in terms of legal complexity, or significance for the long-term health and stability of the economy…Our interest is in helping to ensure that Brexit delivers the best deal possible for Britain.”

The report refers to cases in which claimants are being advised not to choose English jurisdiction clauses in their contracts where previously they would have been almost an automatic choice. Some cases that would normally be launched in England are being started in other EU jurisdictions due to uncertainty over the ultimate enforceability of English judgments.

According to the ‘Guardian’, the UK legal services market generates £25.7bn a year in revenue and employs 370,000 people. It produced £3.3bn of net export revenue last year. In the short to medium term Brexit may benefit lawyers whose legal advice is sought in a period of uncertainty, but the long-term prospects are not as good.

Peter Wilding, the man credited with inventing the term Brexit in 2012, said “This is not stopping Brexit, this is shaping it. The country demands a win-win, smart Brexit, not a lose-lose ideological hard Brexit which will damage the UK, damage Europe and for which there is no need and no mandate.”

The Law Society welcomed the bar’s Brexit Papers publication, which it said echoes positions set out by Chancery Lane in the wake of the referendum vote. Law Society president Robert Bourns said that: “Throughout this year the bar and the solicitor profession have been engaging with the government to examine the ramifications of Brexit, and put robust information before ministers, parliamentarians and officials.”

Hugh Mercer said “There is a great deal of work to be done. The resources of the Brexit Working Group, as well as those of the Bar Council and the Bar as a profession, are being made available to the Government, parliamentarians and the media, as well as to the public, so that Brexit delivers the best deal possible for Britain.”

The full text of The Brexit Papers can be found at:

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Contingent Legal Aid Fund

The Bar Council, the Chartered Institute of Legal Executives (CILEx) and the Law Society of England and Wales have joined forces to set up a joint working group to examine the viability of a contingent legal aid fund (CLAF).

The aim is to see whether a CLAF is a worthwhile option to complement existing forms of litigation funding, with the objective of providing access to justice at lower cost and/or in ways not yet provided for by other means.

Preliminary investigations indicated substantial confusion over the nature and purpose of a CLAF with mixed views as to its utility and/or viability. The working party formed an early view that in order to be self-sustaining, a CLAF will need either substantial initial seed funding or, with limited seed funding, would need to start with a relatively small pool of cases.

It also became clear to the working party that to be self-sustaining, cases would need to be selected on the basis of a rigorous merits test and confidence that the claims would be of sufficient value and with good prospects of recoverability of any award of damages and costs.

The working party also formed a preliminary conclusion that, at least at the outset, it would not be possible to support either low-value cases or cases with less-good prospects of success, although in future the CLAF might be able to fund a small proportion of deserving cases or test cases which would otherwise not be viable.

The overall conclusion was that, without government funding or substantial voluntary donations, the CLAF would need to generate consistent surpluses to build up a long term fund and would not be able to look for further funding except on the back of a successful record of achievement. It was likely that, in the absence of very substantial initial funding, a CLAF would need to obtain support from an established organisation or litigation funder to avoid the costs of establishing the necessary infrastructure to access and manage a suitable volume of viable cases.

In the light of these views and uncertainty as to the perceived attractiveness of a CLAF, both to the profession and to prospective litigants, it was decided that a survey of the profession should be launched in order to obtain the widest possible set of views in relation to a CLAF.

This survey is an important step in the development of the assessment of the viability of a CLAF and proposals for progressing its implementation if sufficient support exists.

This survey will take approximately 10 minutes. It will close at 12:00 pm on 9 January 2017 and all responses will be treated confidentially and only reported on at an aggregate level.

Please email legalaid@lawsociety.org.uk if you have any questions about the survey.

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Enemies of the people

As the ‘Observer’ rightly said, “Our judges do not do politics. They do law. They are selected to be judges on their legal ability.”

The high court’s ruling on article 50 sent the clear message that the government does not have free rein to sweep away any legislation it finds disagreeable.

But the quality and impartiality of this judgment finds no favour with the Brexit media, led by the ‘Daily Mail’, which, under the infamous headline “Enemies of the people”, mounted a vicious assault on the three high court judges who ruled in the case. The government appeared to be fuelling this attack. Sajid Javid, the local government secretary, described the judges as seeking to “thwart the will of the people”. Read the full story

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The need for a review of legal aid

The Legal Aid Act has denied justice to the most vulnerable and must be reviewed. The government is committed to a review after three years but there is mounting evidence that it should come sooner.

On people trafficking, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The legal aid cuts have added to the strain on divorcees. Evidence gathered by Citizens Advice shows that nine out of 10 people who have gone through the family courts, under new rules that heavily restrict access to legal aid, suffer strain in their mental and physical health, working lives and finances. The system is not set up to deal with “litigants in person” (LiPs). Of those who chose to be litigants in person, 90% reported a negative impact on their everyday lives.

Three years after the government scrapped legal aid across swaths of civil law, more ‘advice deserts’ are materialising in the sectors that remain in scope. A number of areas have no cover at all. The Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

The Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. The Law Society backed the challenge brought by the Public Law Project. Society president Jonathan Smithers said: “The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand.”

The Low Commission was established by the legal education charity Legal Action Group in 2012 in the wake of the legal aid cuts to develop a strategy for access to advice and legal support in social welfare law in England and Wales. It was set up to examine the impact of legal aid cuts and develop a strategy to help ensure access to justice. It is to be wound up because of a lack of funds.

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid. He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years.”

He went on to say: “Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working.”

Corbyn will agree with the 22 signatories, including Chantal-Aimée Doerries QC Chair of the Bar Council and Jonathan Smithers President of the Law Society, to a recent letter in the ‘Guardian’. Short and to the point it said: “We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013. We agree with the justice select committee that the cuts have limited access to justice for some of those who need legal aid the most.”

It concluded: “The government has repeatedly said it will carry out a review to assess the full impact of the legal aid changes after three years. Today we call on ministers to fulfil this commitment at the earliest opportunity. We believe it is vital for government to ensure nobody is denied access to justice based on their ability to pay.”

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The cost of qualifying as a barrister

In January, Chantal-Aimée Doerries QC became the new Chairman of the Bar, the representative body for barristers in England & Wales. She studied at Cambridge and in the US. She was called to the Bar in 1992 and took silk in 2008. She practises from Atkin Chambers.

In a recent interview with the ‘Guardian’ she warned that students beginning university may have to spend up to £127,000 to qualify as a barrister. She highlighted the huge sums required for training as she voiced concerns that progress on diversity and social mobility within the profession could be thrown into reverse due to the high cost of training.

“For students starting at university this year, the cost of qualifying as a barrister could approach £127,000,” Doerries told the ‘Guardian’. “I hear from the junior bar that practising barristers paying off debts of between £40,000 to £60,000 is by no means uncommon [but] those figures are for individuals who completed their undergraduate degrees before higher tuition fees were introduced.”

“The cost of qualifying creates a huge social mobility challenge, which is why we have developed initiatives such as bar placement week and mentoring programmes to encourage able students from non-privileged backgrounds to set their sights on a career at the bar,” said Doerries.

Her calculation of £127,000 is based on an undergraduate who initially takes a non-law degree from a London university then goes on to a graduate diploma in law conversion course followed by a bar professional training course (BPTC) qualification, also in London. BPTC courses can cost up to £19,000.

The overall figures include costs for accommodation, subsistence and tuition fees over five years. Annual living costs in the capital, based on National Union of Students calculations, are about £13,000.

The Bar Council estimates that the equivalent for those studying outside London is likely to be only slightly lower, at about £111,000. A friend’s daughter, who is going to University this autumn, has done some very careful budgeting and reckons she can do it for £65,000.

“Bursaries and scholarships are available, and some may have savings or come from a wealthy background, but for most people, funding for their qualification will come from juggling study and part-time work, student and commercial loans, and family contributions,” she said.

The number of applications to join the bar has not declined so far, said Doerries. “I’m sure there’s a future for them but in some places [like the criminal bar] their earning potential has been cut by the government in the past few years.”

She told the ‘Guardian’ that the number of applications to join the bar has not declined so far. “There are plenty of individuals who come from economically disadvantaged backgrounds and have benefited from some scholarship or funding. They are usually the standout students.

“But the risk is that others from less advantaged backgrounds, who are still very good, are being put off from applying.

This could create a succession problem. Most senior judges started off as barristers and anything that deters the less privileged from applying will distort the future profile of the judiciary.

Illustration by Paula Hartley

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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

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Threat of ‘elective dictatorship’

Last week’s blog described justice secretary Chris Grayling’s problems with judicial reviews and his justification for them to be limited. He accused pressure groups of exploiting costly legal procedures to delay legislation, planning permissions and deportation decisions, and said judicial reviews were being used as a tactical tool rather than a vehicle for an individual to right a wrong.

This week he came up painfully against the subject once again. On Monday he suffered a defeat in a key House of Lords vote on his plans to curtail access to judicial review, which would have made it harder to challenge government decisions in court. Peers voted by 247 to 181, a majority of 66, to ensure that the judges keep their discretion over whether they can hear judicial review applications.

It was at report stage of the Criminal Justice and Courts Bill that amendment 146 to clause 70 was moved by Lord Pannick. This led to an outstanding debate on a crucial aspect of the constitution. Lord Pannick said that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies.

Lord Beecham agreed and said: “Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review.” He quoted the Master of the Rolls, Lord Dyson, who has asserted that: “there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.

Lord Deben said: “It is unacceptable if we have a system whereby if the government has acted illegally it can’t be brought to account in the courts. The British defence of freedom is judicial review.”

Former lord chief justice, Lord Woolf, said that the alternative amounted to an ‘elective dictatorship’. “It’s dangerous to go down the line of telling the judges what they have to do,” he told peers.

Baroness Williams of Crosby said: “Let us take pride in what we have been and what we are: one of the few countries in the world where an individual is treated as having the full right to challenge the Government and other forms of the Executive. I conclude by saying that it would be an act of absolute tragedy if we were to allow a law to go through that begins to put in doubt that reputation.”

Peers who voted against the government included the former Conservative cabinet minister John Selwyn-Gummer, who sits as Lord Deben, the former Tory chancellor Lord Howe, and 17 Liberal Democrat peers, including the former party leader, Lord Steel, and Baroness Williams.

Sadiq Khan, the shadow justice secretary, responding to the government defeat, said: “This is a humiliating slapdown for the government. These changes would have weakened judicial review, and would have placed the government above the law.

The Bar Council, which represents barristers, the Law Society, representing solicitors, and the Chartered Institute of Legal Executives (CILEx) in England and Wales are all opposed the proposed changes and supported the amendments.

Grayling later suffered a second defeat. Peers voted 228 to 195, a majority of 33, over the issue of requiring applicants for judicial review to provide information on the financing of the application. He is likely to try to overturn the defeats when the criminal justice and courts bill returns to the House of Commons. The proximity of the general election could put this in doubt.

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Legal aid truce with barristers

Bar leaders have agreed an interim deal with the Ministry of Justice to end the fee impasse that had threatened to derail several major trials, with a view to reforming the payment scheme for the most expensive cases.

Under the agreement, revised fixed fees, to be determined on a case-by-case basis, will be paid to advocates undertaking very high cost criminal cases (VHCCs). Details of the individually negotiated fees have not been revealed. Read the full story

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PCT consultation closes

Probably the most heavily publicised consultation exercise has reached its closing date. After travelling road shows by the Law Society and MoJ, protests outside Parliament and a crowded meeting in London, the time for talking is over. Or, perhaps, just beginning.

Never can there have been such an overwhelming response to a set of proposals. Read the full story

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