In October 2010 it was announced that the YJB would cease to function as a public body, and the leadership of youth justice and functions of the YJB would move into the Ministry of Justice. Justice minister Jonathan Djanogly said at that time: “This organisation has helped to transform the delivery of youth justice and has fulfilled an important role in reducing offending and re-offending by young people. Now is the right time to look more radically at the arrangement of youth justice, including the role of the YJB, ensuring that a dedicated focus on rehabilitation needs of young people is driven forward in the future.”

Both the YJB and the office of the chief coroner were to have been scrapped as part of a so-called ‘bonfire of the quangos’. But the government was defeated in the House of Lords on both decisions earlier this year, and further defeat was expected at the latest stage of the bill. The Ministry of Justice said the youth justice system still needed reform to make it more efficient and directly accountable to ministers, but, “following careful consideration”, the board would be saved. So both burning brands were plucked from the fire at the last moment.

Crossbench peer and former chief inspector of prisons Lord Ramsbotham, whose amendment reprieving the board was accepted by the government, welcomed the decision. He said: “I would like to thank and congratulate the Government on the decision that they have come to. By deciding to retain the Youth Justice Board, they have provided a service to two separate organisations and bodies: first, the youth justice system as a whole, which has benefited from the leadership and direction of the Youth Justice Board since 1999; and, secondly, the Ministry of Justice itself, because it has retained an independent body capable of directing and overseeing the youth justice system on its behalf that is accountable and responsible to Ministers.

“This is particularly important in the light of the riots in the summer, because during that period the Youth Justice Board played an enormously important part both in liaising with, overseeing and helping the youth offending teams out in the community and in overseeing the introduction and reception into custody of people who required a great deal of help.”

In a BBC report, Juliet Lyon, director of the Prison Reform Trust, is reported as saying that the government had shown that it is prepared to listen to reason. “By holding on to the Youth Justice Board it can build on an impressive drop in youth crime and continue to reduce the numbers of children and young people getting into trouble,” she said.

So what’s next for U-turning?

As reported in the ‘Law Gazette’, the new chair of the Criminal Bar Association, Max Hill, has warned that criminal barristers will take direct action, including withdrawing their services, if the government presses ahead with its plans for price-competitive tendering. He told the Bar Council’s recent annual conference that “price competition is anathema to an independent, high-quality bar”, and would mark an end to a quality service and equality. He said that the introduction of price competition and the retention of an independent bar are mutually exclusive, and that the government is in ‘cloud cuckoo land’ if it thinks the system would present a level playing field on which the bar can compete. “Price competition is nothing short of an order that the bar disband and go into business with solicitors. Call it fusion, call it partnership, call it what you like. It is the end of the bar,” he said. He added that barristers are prepared to “act on principle, to safeguard the public interest which is served by an independent bar of specialist advocates….We can and must stand up and act.”

On taking office as chairman of the Criminal Bar Association in September, Max Hill stressed that criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, to ensure the criminal justice system works efficiently and fairly. He warned that, in this context, legal aid cuts could cripple the criminal bar. In addition, in an interview with ‘The Times’, he said that in the view of the Criminal Bar the imminent cuts to barristers’ fees, on top of serial reductions in preceding years, amounts to a very real threat to a fully functional criminal justice system.

Also reported in the ‘Law Gazette’ is that plans to introduce the Quality Assurance Scheme for Advocates (QASA) have run into serious difficulties. The Criminal Bar Association has been told by Max Hill that, amid a dispute about linking payment to accreditation level, progress on QASA has been halted so far as the CBA is concerned. He said that the scheme as proposed would lead to “a world in which the word barrister would have no meaning, and no place within the fee structure.” He added: “Proper reflection from all sides may produce a solution. It is in everyone’s interest to allow that solution to emerge.”

So it looks as if his year of office could be interesting. Urging his colleagues to remain united in the face of the challenges that lie ahead he said: “Tough times are undoubtedly ahead for the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost.”

The SRA will be implementing OFR from 6 October 2011. It claims to be outcomes focused and risk based, and aims to provide clients with services that are tailored to their particular needs. OFR means that firms and practitioners will have greater flexibility in establishing how they can achieve the best outcomes for their clients. The SRA has published a handbook which underpins the regulation of solicitors, law firms and alternative business structures (ABS). It brings together all of the SRA’s regulatory requirements into a single structure and underpins the regulation of solicitors, law firms and ABS. It sets out ethical standards that the SRA expects of law firms and practitioners, and the outcomes that it expects practitioners to achieve for their clients.

The SRA claims that OFR in practice means a different way of thinking and operating. There are ten principles. Most of these are similar to the core duties contained in the current Code of Conduct, but there are some new ones. They now stand alone at the beginning of the handbook and underpin all of the regulatory requirements. The SRA say that whenever a regulatory issue is to be considered the first point of reference should always be the principles. They apply to everyone the SRA regulate, not just solicitors in traditional firms and in-house practice but also, in due course, to new entrants to the legal services market such as non-lawyer managers of ABS.

So far so good. But what has really ruffled feathers are allegations that customers who go to law firms are too often left in ignorance about progress in their case, then burdened with a huge bill at the end of proceeedings. According to the ‘Guardian’, at the launch of OFR the chief executive of the SRA, Antony Townsend, said there were instances of gross overcharging, and that consumers needed to be given more information about costs. In their research the key concerns that had come from consumers were to do with information. He said: “The biggest worries were lack of clear expectations and a lack of clarity about charging. Clients feel they don’t know what’s going on, there are delays that are unexplained and they are handed a huge bill at the end…There are some cases of gross overcharging and we do take action, but we are not a price regulator. Where someone has been grossly exploited we will take action.” When asked if a double-dip recession would trigger a fresh outbreak of embezzlement cases among lawyers he replied: “Yes. Small firms are operating in a very difficult environment. In desperate times solicitors may borrow money from the clients’ account and it goes from bad to worse.”

If comments posted on the Linkedin website are typical then there is acceptance that this is a great opportunity to explain to the public the level of service they can expect from a solicitor. But there is resentment that the solicitors’ own regulatory authority should portray the profession as a bunch of overcharging embezzlers. Rather the authority should be highlighting the good practice of so many in the legal profession.

He was speaking on Wednesday at the CityUK Future Litigation event held at the offices of Clifford Chance. He said: “As for domestic regulation, we are less than a month away from an historic change – the introduction of Alternative Business Structures on October 6 that will allow solicitors, barristers and other professionals to combine together in new ways, should they choose to, for the benefit of the consumer. Time will tell, but I hope that comparisons with the Big Bang in 1986 do not prove entirely fanciful.”

The Big Bang refers to Margaret Thatcher’s deregulation of financial markets in 1986, which involved measures including abolition of fixed commission charges, of the distinction between stockjobbers and stockbrokers, and the move to electronic, screen-based trading. The day the London Stock Exchange’s rules changed, 27 October 1986, was dubbed ‘Big Bang Day’. The effects of Big Bang were dramatic, with London’s place as a financial capital decisively strengthened.

For many lawyers the advent of ABS is nothing less than Armageddon, and the justice secretary conceded he was aware that some voices have expressed a “degree of nervousness about ABSs.” He said that his intention is that the new structures will be of benefit both to the economy and to the profession by improving growth in the legal services market, whilst protecting standards. “Through allowing law firms and Chambers in England and Wales to access capital, ABSs could provide greater flexibility to serve clients, increase competition and afford new opportunities for global expansion into legal services”, he said. He was conscious that this is a time of uncertainty, with particular concerns regarding the pace of change, the fate of smaller firms and the implications for quality. But he affirmed: “My priority is that ABSs help firms to work together in an economically viable set-up and that’s why we’ve taken our time in trying to get the regulatory framework right. It is important that consumers, no matter whether using a traditional law firm or a new ABS firm, are provided with first class service and protection.”

Which is fine, and no-one is arguing the toss on that point anymore. The concern is that lawyers themselves will allow the fear of this change to stop them like rabbits in the headlamps when they should regard themselves as having the upper hand. It is they that have dominated the legal marketplace for centuries and they who have all the experience. Changing the way they sell and operate is what the fight it about, not changing the work they do. Tesco law remains the stalking horse but it is time to make sure that club card points don’t ever become a substitute for great legal services.

Image courtesy of conservativeparty’s photostream on flickr

Justice minister Jonathan Djanogly praised staff across the justice system who are working around the clock. He said: “I congratulate courts, prisons, probation, youth and emergency services for the difficult work they are doing. Today I met court staff and Judges who had worked 30 hours straight. I am very grateful for all their hard work.”

But there are concerns about some methods being used. The ‘Guardian’ published a leaked document, called ‘Operation Withern: Prisoner Processing Strategy’, which was circulated among Met officers investigating the disturbances at their height. The document suggests the strategy had been to ask for bail to be refused in all riot cases resulting in charges in order to prevent further disorder. It is therefore no surprise that, of those brought before a court, 62% were remanded in custody, 6 times more than usual. It is certainly putting the already over stretched prison system under intolerable pressure. Cabinet minister Ian Duncan Smith broke ranks when he wrote in the ‘Guardian’: “As senior police officers on both sides of the Atlantic have said, you cannot just arrest your way out of this problem.” The BBC reports that lawyers are planning to challenge the Met’s custody procedures in a judicial review.

Criticism has also been levelled at the severity of sentencing. Director of Campaigns for the Howard League for Penal Reform, Andrew Neilson, said: “While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against a key principle of criminal justice, that of proportionality. The danger is that some of these sentences are disproportionate and indeed devalue our response to more serious crimes. We know the courts are swamped with cases, and handing down hurried and overly punitive sentences will only result in many criminal appeals, which will act as a further drag on the system.”
 
Last week MoJ saw fit to publish a statement explaining how our sentencing system works, stressing that magistrates and judges are independent of government. Senior figures such as Lord McDonald, former head of the CPS, and Lord Carlile, former independent advisor on terrorism strategy, are not alone in voicing the fear that this separation of powers between the government and the judiciary is being put at risk by ministerial comments appearing to give a steer to the courts.

It is probably inevitable that consistency of sentencing is a casualty of this rush to justice. Two men in Chester were jailed for four years for posting messages on Facebook inciting people to create disorder in their home towns despite the fact that the riots didn’t take place. A 19 year old in Gloucester posted messages on Facebook inciting the vandalising of a Spar shop. He was not brought to court but ordered to write a letter of apology. In a third similar case a 21 year old from Bangor received a four month sentence. An 18 year old pleaded guilty to the theft of two T-shirts, worth £60. He pleaded guilty, had no relevant previous convictions, and was sentenced to a day in custody. But a 23 year old Londoner, who also pleaded guilty and had no relevant previous convictions, was jailed for six months for stealing a £3.50 case of water from Lidl supermarket.

And recently, on another planet, David Laws, briefly a cabinet minister in the coalition government, admitted falsely claiming £40,000 of public funds in the MPs expenses scandal. He was suspended from the House of Commons for seven days.

News International thought that the surest way to distract people was to create a compelling diversion. Closing the News of the World was intended to hold off criticism, but it was never going to be enough, and the fall-out continues. The Metropolitan Police have questions to answer over shelving an investigation that they should have pursued vigorously. They failed to tell thousands of people whose names appeared in the books of a private investigator that their phones might have been hacked. Their excuse was that they were far too busy with other matters – particularly terrorist plots – to plough through the mountain of documents they had recovered in the sketchy first enquiry. Perhaps they should have handed the lot over to Wikileaks for analysis. It would seem that the police were afraid of endangering their cosy relationship with the Murdoch papers. More seriously, some police were corruptly paid by the Murdoch press.

David Cameron made an astonishing statement on Wednesday when he admitted that the relationship between media executives and the politicians had become unhealthy. He said: “It was too close. Too much time was spent courting the media and not enough time confronting the problems.” Margaret Thatcher was the last Prime Minister who didn’t give a toss about the media. Since then it has been a sorry catalogue. Kingmaker Murdoch saw off Neil Kinnock, John Major and Gordon Brown, while ensuring the coronation of Tony Blair and David Cameron. No wonder there was a climate of fear, a reluctance to take on the power of the tabloids which used illegal intrusions into privacy to sell newspapers and to secure political influence. Even Tony Blair was eventually moved to castigate the “feral beast” of the media.

One politician who did not cosy up to the Murdoch empire was Vince Cable. As business secretary he had legal responsibility for deciding whether to accept any Competition Commission decision that a takeover of BSkyB could go ahead. Then last December he was caught by a ‘Telegraph’ sting when he revealed his true feelings. He told the undercover reporters: “And I don’t know if you have been following what has been happening with the Murdoch press, where I have declared war on Mr Murdoch and I think we are going to win…His [Murdoch's] whole empire is now under attack…” He lost his BSkyB role for his indiscretion and was considered lucky to hang on to his cabinet post. But who would argue with his judgement now. On Wednesday Rupert Murdoch capitulated to parliament and abandoned News Corporation’s £8bn bid for BSkyB. So a celebratory lap of honour in the Cable household would be in order.

Also on Wednesday David Cameron performed another U-turn and announced a sweeping public inquiry, to be presided over by Lord Justice Brian Leveson, into widespread lawbreaking by the press, alleged corruption by police, and the failure of the initial police investigation into phone hacking. The inquiry will also look at a new system of independent regulation of the press and the potentially critical issue of future cross-ownership between press and television stations. So that’s alright then.

Or is it? Inquiries under The Inquiries Act 2005 can still be subject to ministerial interference on the relevance of evidence and even the terms of reference. They also grind exceedingly slow. No results are promised in under a year. The danger is that, once the initial outrage has passed, and the general public is otherwise distracted by such as the Diamond Jubilee and the Olympic Games, we will again settle for half-measures, half-implemented, as happened with the impulse for constitutional reform that came out of the parliamentary expenses scandal.

Photo courtesy of bisgovuk

According to the CAB, last year more than 300 of their specialist case workers – paid for by legal aid funding in social welfare law – dealt with over 40,000 welfare benefit cases, almost 60,000 debt cases, over 9,000 housing case and 3,000 employment cases, accounting for over 20% of all publicly funded cases in these topic areas. They calculated that, if the cuts went ahead as planned, they, along with other voluntary sector providers, would lose up to 92 per cent of their funding for the provision of specialist advice on legal matters. In a survey of 106 Bureaux in December 2010, over half said that the proposed legal aid cuts would pose a real risk to the continuation of their local advice service as a whole.

In February CAB Chief Executive Gillian Guy said: “We are deeply concerned that planned cuts to legal aid will seriously damage access to justice for our clients, and seriously damage our ability to provide specialist advice for the most vulnerable. Every year thousands of our clients need help from civil legal aid services at moments of real need. If people can’t access legal help, the consequences can be dire – spiralling debt, homelessness, family breakdown, domestic violence, depression.” She said that  continuing economic uncertainty, cuts to public services and the biggest shake-up of welfare benefits for decades would all generate an increased need for advice on social welfare law issues in the future. She added: “If the legal aid cuts go ahead, many of the most vulnerable members of our society will be overwhelmed by devastating problems because they will have nowhere to turn for help.”

But here it would seem that the law of unintended consequences had kicked in. At the introduction of the Legal Aid, Sentencing and Punishment of Offenders Bill, Ken Clarke acknowledged the validity of these fears and promised to address them. He said: “On citizens advice bureaux and other forms of general advice, I hope to be able to say something on Second Reading—I am making advances, but we will see how much we can come forward with.” He was as good as his word. Referring to the future of not-for-profit advice centres, at Second Reading he agreed that they do important work in providing quality, worthwhile advice of the kind required by very many people. He went on to say: “We are working with the sector and across Government to ensure that the Government reforms help to improve the efficiency and effectiveness of the advice services available to the public, and we will provide up to £20 million of additional funding in this financial year to help achieve that. We are also, of course, mindful of the impact of reforms beyond this financial year and will continue to consider the issues arising from that.”

In response to this U-turn CAB’s Gillian Guy gave two cheers. She said: “Ken Clarke deserves real praise for this extra money for free, independent advice services. It will go some way towards ensuring that vulnerable people can continue to get the advice they need.” But she added: “However, Citizens Advice remains very concerned about the legal aid bill…The problem is not just that the cuts are so deep – what’s left of civil legal aid will be inaccessible for too many people and unworkable for too many advice providers.”

Last Wednesday Home Secretary Theresa May told the Commons: “Our law enforcement agencies assess that there are some 38,000 individuals engaged in organised crime, involving 6,000 criminal groups (but) law enforcement is impacting in a meaningful way on only 11% of those 6,000 organised crime groups. We must do better.” She said that for too long national and international crime was neglected and our borders became porous, and the overall effect was a fragmented and patchy law enforcement response. She added: “The National Crime Agency will be a crime-fighting organisation. It will tackle organised crime, defend our borders, fight fraud and cybercrime, and protect children and young people. Intelligence will be at the heart of what the NCA does…All other agencies will work to the NCA’s threat assessment and prioritisation, and it will be the NCA’s intelligence picture that will drive the response on the ground.” The new head of the National Crime Agency will effectively become the most senior police officer in Britain with powers to order other chief constables to undertake investigations.

The new agency will be made up of four distinct parts, or ‘commands’, dealing with organised crime, border policing, economic crime and the child exploitation and online protection centre (CEOP). The commands will be linked to the NCA’s intelligence centre to ensure information flows to and from the police and other law enforcement agencies in support of tactical operational activity. Last-minute negotiations led to the exclusion of the Serious Fraud Office from the new agency, although the NCA will have a lead role in tackling economic crime. The City of London police, the Office of Fair Trading and the Financial Services Authority had already been excluded from the merger.

Shadow Home Secretary Yvonne Cooper was particularly critical of the proposal to replace the Child Exploitation and Online Protection Centre. She told the Commons that, despite good results this year, Jim Gamble, its successful head, resigned from the agency after seeing the Government’s plans to merge CEOP with the NCA. She quoted him as saying: “I don’t believe that the rebranding or the submerging of CEOP within a far greater entity will allow the critical child protection focus that we need,” making the point the point that CEOP will also suffer a 10% per cent reduction in its budget by 2014. On the National Policing Improvement Agency she said that the Home Secretary has said nothing at all, but she is disbanding it in 2012, a year before the NCA starts.

The full text of ‘The National Crime Agency – A plan for the creation of a national crime-fighting capability’ can be found at:

http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary

So the Solicitors Regulation Authority (SRA), which regulates more than 120,000 solicitors in England and Wales, and is the independent regulatory body of the Law Society of England and Wales, has been piloting a system of work based learning (WBL). The scheme was initiated in September 2008 with the aim of developing a consistent and reliable method of assessment, and testing a different route to qualification which did not depend on the candidate securing a training contract. Seventy nine students took part in the pilot, of whom 70 passed following completion of the course in December 2010. The candidates were either nominated by legal firms who had already agreed to take them on for training as solicitors, or candidates who volunteered for the scheme and who were already employed in legal firms or in-house legal departments in legal roles which would not otherwise have led to qualification. In both cases they were assessed either internally by their employer or by an external provider against a set of eight learning outcomes involving practical legal experience.

The SRA has published a report on the results of the two year pilot scheme. The Middlesex Evaluation Report, produced by The Institute for Work Based Learning at Middlesex University, found that “the WBL framework demonstrated a level of success in providing the legal profession with a learning and development approach to the vocational stage of qualification that assures quality in assessment, and that can be monitored and contribute to enhancing standards across all set ups.” The report made several recommendations. These include further work to set out the skills and attributes for qualifying as a solicitor and the learning outcomes necessary to demonstrate competence. Key professionals should be trained in coaching and assessing within a WBL framework, and there should be an accredited learning scheme for prior learning.

Writing in the ‘Guardian’, Neil Rose, editor of LegalFutures.co.uk, notes that WBL offers a route to qualification for paralegals who have completed the LPC and are doing training contract-type work, though not within a training contract. But he adds: “WBL is not the silver bullet to sort out diversity issues in the solicitors’ profession, although the research indicates it can help break down socio/educational barriers to entry…For example, there is an increasing focus on having work done by the right level of fee-earner, which in many cases need not be a fully qualified lawyer. This will only increase when alternative business structures are allowed later this year and new players look to re-engineer the way legal services are delivered.”

To see either the full WBL report, or a summary of the report, go to: http://www.sra.org.uk/sra/news/press/learning-pilots-results.page?ref=search                      and follow the links.

The Child Poverty Action Group believe that the proposed reforms will have a negative impact on child poverty by reducing access to welfare rights and social welfare advice. “There is no alternative source of funding for welfare rights services; if legal aid is cut, law centres, citizens advice bureaux and advice centres will shut down, local authorities’ welfare rights units will go.” The Citizens Advice Bureaux submit that social welfare law raises complex legal issues, and problems are often extremely serious to users of the justice system. Limiting the scope of issues with which legal aid funded advisers can help means they will not be able to solve people’s problems fully, as many clients experience multiple problems across different civil justice and social welfare scope areas.

Gingerbread, the national charity working with single parent families, is concerned that the loss of legal aid in private family law proceedings threatens the vital role of the family court as the final arbiter in difficult, complex or intractable parental disputes. “Approximately 10 per cent of separating parents use the family courts to resolve disputes over residence and contact. These families are often the ones facing the most difficult and extreme situations which involve high levels of dispute and/or child protection issues. If these proposals are implemented, access to justice will be severely curtailed for literally thousands of parents and their children.”

Rights of Women oppose the proposed changes, claiming that they are discriminatory and will entrench inequality, with the disabled, poor and marginalised disproportionately affected. Women will be at greater risk of violence and an important check to abuses of power and incompetence will be lost. While welcoming the proposed helpline they are “strongly opposed” to the move to a single telephone gateway. “What provision will be made for those without access to a telephone?” they ask. “How are asylum-seekers or those with an insecure immigration status supposed to access advice and representation? How are children – for example, separated children seeking asylum in the UK – supposed to use the helpline? How likely is it that a woman experiencing domestic or sexual violence will be able to disclose this to a (male?) operator?”

The Association of Lawyers for Children submit that the proposals take little or no account of the complexities of society today, will have major regressive impacts and should not be considered further until after the Family Justice Review has published its final report. In similar vein, the Royal College of  Psychiatrists do not accept the distinction that seeks to suggest that unless there is actual domestic violence then contact and residence disputes should be outside the purview of legal aid. “These matters are crucial to children’s lives. They are dependent and have no power in the situation. If their resident parent is coerced and appropriate resolution of the matter, if necessary by the courts, is not supported by the State, then the risk of mental health harm is much higher for the child.”

For these and many more responses go to ilegal at:
http://ilegal.org.uk/