Michael Foot once memorably described him as a ‘semi-house trained polecat’ in recognition of his fierce right wing views. So when the same Norman Tebbit, now ennobled, proposes what can only be described as liberal minded amendments to the current Legal Aid bill it is a moment of significance.

He has put his name down to two, linked amendments that would ensure children, or parents on their behalf, will be entitled to legal aid if they need to pursue medical negligence claims. In relation to depriving claimants under the age of 18 from having access to legal aid for medical negligence claims, he told the ‘Guardian’: “In that area [the bill] may be going too far. I want to hear all the arguments. It’s right that it should be debated.” He had taken up the cause, he said, because: “I have listened and read the arguments …and I think there’s sufficient in it that we ought to [examine]. It’s nice to be on the side of the angels for once.”

At the same time the embattled Ken Clarke contributed an article in the ‘Guardian’ in which, almost apocalyptically, he said: “There should be no doubt that the system is facing an existential crisis.” He went on to say: “So for any reasonable individual it is not a question of whether we reform legal aid, but how. My approach has been to take a methodical, first-principles look at the system. The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where not.” He concluded: “The threat I want my reforms to pose is to a failing system, outdated methods and unreformed working practices, not to the needy.”

He will not have been pleased to hear the right wing former MP for Chingford, a supporter of the government’s draconian spending cuts, say that he feared that some of the economies proposed by the Ministry of Justice may be “going too far.”
The bill came to the House of Lords at committee stage on Tuesday. The debate got no further than amendments to clause 1, which defines the Lord Chancellor’s responsibilities. Four amendments were debated but all four were withdrawn without being put to the vote. Once again, reading the debate, it was noticeable that, apart from the ministerial team, the government had not put up anyone to speak in favour of the legal aid proposals. Committee stage continues on 10 January when further amendments will be discussed.

And finally, may I wish you all a merry Christmas and a happy New Year.

Image courtesy of The Freedom Association’s photostream on Flickr

Barristers are renewing their efforts to capture the territory that has traditionally been the preserve of solicitors. To this end two initiatives have been launched.

The public access scheme was first established in 2004 and allows a barrister to be instructed directly by a lay client without the need for a solicitor. In order to take on public access work a barrister must have more than three years’ practising experience, must be properly trained and must have registered with the Bar Council as a public access practitioner. One stumbling block has been payment of barristers by clients.

In his inaugural speech to the Bar Council on Monday, Michael Todd QC, Chairman-Elect, confirmed that he is “chairing a Working Group, essentially led again by the Member Services Team, to look at the feasibility of a service which would provide BSB-regulated entities and Public Access barristers with an escrow account facility in which can be placed ‘client monies’ and which will be administered centrally from one location by a third party.” He said: “Already considerable interest has been displayed by a number of potential providers of this service.”

He told the Bar Council: “We have no entitlement to work. We must compete for it. We must invest better to adapt, to change, and to flourish. The returns on such investment are, in my view, undeniable.” He went on to say: “Of a Bar of about 15,000 members, nearly 5,000 are now ‘Public Access’ trained. They have made an investment in their future.” In his CrimeLine twitter

Andrew Keogh confirms that: “My police rep courses are mainly filled with barristers at the moment.”

Then on Wednesday last week the Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, announced that it is consulting on amendments to its Code of Conduct for barristers following a review of its public access rules. The BSB said: “Public access rules do not allow a client who may be eligible for public funding to instruct a public access barrister. This is one of the rules the BSB seeks to change. The consultation also suggests that barristers should have a duty to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.” The lifting of the ban on barristers with under three years’ practising experience from accepting public access instructions is also proposed.

The BSB claim that the change would improve client choice and provide greater access to justice for clients who find themselves without access to legal aid solicitors. Removing the three-year rule and allowing barristers to do direct access work from the time they qualify would expand consumer choice, create greater competition and increase the supply of high quality and competitively priced advocacy services.

According to the Law Gazette, the consultation paper states: “The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries.”

The consultation will close at 5pm on 9 March 2012, and the consultation paper can be found at:
http://www.barstandardsboard.org.uk/assets/documents/Public%20access%20consultation%20paper%20new.pdf
PS: “Escrow generally refers to the placing of property which is the subject of a commercial transaction (money, title deeds, software source code, etc.,) into the hands of a trusted third party for safekeeping until some specified event occurs which will trigger the release of the property to one party to the initial transaction.” (Out-Law.com)

“The question is, how will ABS impact on you as some people have some very exciting plans …. Where is the competition?”
Charles Plant, Chair of the SRA 17th October 2011

This was the thoughtful challenge set by Charles Plant near the close of his address to the Sussex Law Society conference. He mentioned two headline examples of how ABS is guiding large businesses, confirming that the Co-op will almost certainly be a certified ABS in January 2012 and that Irwin Mitchell was close to securing £50m of external investment. It would be very easy to assume that this has nothing to do with the average high street firm until these businesses open up an office next to yours. 

The SRA Chair made the valid point that organisations like the Co-op will only do the work they can do commercially. They will cherry-pick conveyancing, wills and any work that is easily commoditisable and has a low cost of entry. This affects all firms directly. If clients are more attracted by the offering of the Co-op and their ilk, high street firms will see the profitable basis of their practice leeching away and not available any longer to support the other work that they do.

“The profession needs to adapt. There is a market and the regulator cannot impose on it”. In other words, the SRA cannot force the Co-Op to take on the less commercial work that legal firms currently do as a quid pro quo for getting their hands on the profitable stuff. All the SRA can so is ensure that all ABS firms are subject to the same regulatory rules as law firms, thus enabling a totally level playing field.

Mr Plant gave the delegates a good outline of the new outcome focused regulatory framework and urged everyone to get to grips with it a little faster than they currently are. Again he seemed to echo in tone the underlying feeling that solicitors aren’t moving fast enough on any front. He made the point that OFR is a deliberate move away from a totally prescriptive approach, whilst acknowledging in some areas (notably the Solicitors Accounts Rules) this was still essential. He stated twice that there would be “no more nitpicking by the SRA”, commenting that lawyers are an intelligent profession and it isn’t for the SRA to tell them exactly how to manage risk within their firms.

photo courtesy of Mike Quinn’s Profile on geograph.or.uk

“You cannot override market forces …. We cannot secure your future for you, you must secure your own future.”
John Wotton, Law Society President, 17th October 2011

With these words, John Wotton made it very clear that the profession needs to start taking responsibility for itself in the business arena. Speaking at the Sussex Law Society Annual Conference, he said that many solicitors are very worried about the fundamental changes they are now facing and that he doesn’t have a crystal ball. “It would be wrong to say that everything will be fine”. He confirmed that times could be very difficult for small high street firms who will particularly be in the eye of the oncoming storm. ABS is a driver of change and it isn’t the only one. Reduced availability of legal aid and the changed expectations of both clients and younger lawyers will also drive that change.

It was clear from his address that the Law Society is has a better understanding than many of its members of the challenges firms are facing now. Indeed it seemed at times as if both he and his co-speaker, the Chair of the SRA, were trying very hard to wake the legal profession up. There is a real fear amongst observers of the profession that it will sleep walk its way into a very avoidable disaster.

John Wotton advised delegates that a big issue is now risk management, which is why outcome focused regulation has been introduced by the SRA. Whilst he didn’t put it in these terms, it is clear that solicitors must understand the fact that risk management starts with having a plan for the survival of their firm in face of the oncoming commercial storm.

The President reminded delegates that risk management is important to clients – 47% indicated exactly that in the latest survey figures available to the Law Society. And he invited lawyers to consider this in positive terms. He pointed out that lawyers have an enviable reputation for the level of their training. They offer great guarantees of service through their regulatory structures, their Code of Ethics, indemnity insurance, the SRA and the ombudsman. These are all huge selling points in the new marketplace that is opening up.

The clear message is that ABS is the game changer. It offers much wider business opportunities than law firms have had before and it may well dilute our current perception of what a law firm actually is. Those opportunities though are the point for a well managed and entrepreneurial firm. Investment, partners from other professions and an opportunity to create a more commercially adept business is there for the taking now. He made a particular point of highlighting how the use of a good, well informed website will provide many ways of breaking down a client’s reluctance to instruct a solicitors firm.

The other clear message is that firms need to act now, a message echoed very strongly by the individual presidents of the local law societies who had come together for this conference. There is a gap opening up between the firms who have grasped the opportunity, as well as the challenge, in front of them, and those who are building their own self-fulfilling doom prophecies by doing nothing.

photo courtesy of Mike Quinn’s Profile on geograph.or.uk

At meetings of the Public Bill Committee considering the Legal Aid, Sentencing and Punishment of Offenders Bill on 6th and 8th September opposition amendments were comprehensively rejected.

Opponents wanted to return the large areas of law that the government has sought to exclude, including welfare benefits, clinical negligence, disability, education and housing law, into the scope of legal aid. Shadow justice minister Andy Slaughter told the Commons committee that the amendments went to the heart of their opposition to the Government’s strategy of restricting legal aid. He said: “Legal aid was devised to allow those who are impecunious and cannot afford access to legal advice to get their cases into court to reach a fair resolution, to be put on a level peg with those who have such resources…The Government’s intention [is] very clear: to be as restrictive as they can possibly get away with being in the provision of social welfare legal aid and to allow exceptions only where they believe it is untenable not to, either for public relations reasons or for reasons of simple morality. Otherwise, they will do their level best to close down those options for legal aid that have grown over time.” 

He went on to say: “We are saying through these amendments that we wish to stay potentially with the status quo. That does not mean things should not be reviewed. On the contrary, the point I am making is that if we want to constantly review what is and is not appropriate, we should not set up a system so restrictive that it will give little justice to anybody who is seeking that in any of the areas currently in scope.”
Justice minister Jonathan Djanogly responded that: “The amendments are contrary to the basis of our whole programme of reform and would increase the cost of legal aid dramatically at a time when we are seeking to focus it on the highest priority cases.” The voting was always close, usually by 11 or 10 to 9, but sufficient to leave the relevant clauses unamended. Any hopes that the two Liberal Democrat members of the committee might be persuaded to vote against the government were dashed.

According to the ‘Law Gazette’, speaking out of committee Andy Slaughter said: “Reading out pre-prepared scripts in response to every amendment and failing to answer questions undermines the ability of the committee to properly scrutinise this legislation and insults lawyers, advisors and volunteers in the sector that are watching us and hoping their voices are heard.” The Parliamentary timetable provides for the third reading of the bill next month before it is passed on for debate in the House of Lords.

Justice Secretary Kenneth Clarke has expressed the hope that the advent of alternative business structures could have as dramatic an impact on legal services as the so-called ‘Big Bang’ of 1986 had on the financial sector.

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

6 October was the date on which the first alternative business structures (ABS) should have been able to open for business in the legal services market place in England and Wales. But now there has been a delay, and it will probably be at least the end of the year before non-lawyers can fully own and invest in law firms.

An ABS is a firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm and at least 10 per cent of that body is controlled by non-lawyers. Under the proposed rules, ABS are not limited in the services that they can offer to the public. The Act is designed to liberalise the £23bn UK legal market by allowing companies to provide legal services, and will permit firms to float on the stock market or seek external capital. The expressed belief is that ABS will bring benefits to consumers through increased competition, the development of new services and ways of delivering them and the integration of the delivery of legal services with other related services.

The Ministry of Justice has informed the Solicitors Regulation Authority (SRA) that parliamentary approval processes will not be completed in time for the SRA to be a designated licensing authority for alternative business structures (ABS) on 6 October, as originally planned. According to LegalWeek, parliament needs to approve the appeals process before allowing the SRA to start licensing ABSs. Provisions must also be made to enable the SRA to check spent convictions of potential owners of law firms.

On their website SRA Chief Executive Antony Townsend said: “We were on track to license ABS from 6 October, so it is disappointing to learn that we will not be able to do so. We will work with the Ministry of Justice to do all we can to speed up the process. But we are in the hands of the parliamentary timetable. It seems unlikely that we will be able to license ABS much before the end of the year, and we shall make further announcements as soon as we have more certainty.”

ABS is the tipping point for the commercial future of the legal profession. The difference is, perhaps for the first time, we will see how non-lawyers will seek to change the way law is practiced in England. The battleground will be online and the future belongs to anyone who uses it well.

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Yesterday’s statistics show that over 3000 people have been arrested following the urban riots. Of these, 1406 have been brought before a court and 157 convicted.

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.

The phone-hacking scandal started out as a story affecting the rich and the famous, and therefore of little relevance to the general public. Then came the revelations that Milly Dowler’s phone had been hacked, as had the phones of the relatives of war casualties, the murdered Soham girls and 7/7casualties. Suddenly it became a scandal of how news is gathered, one which could have touched any family, and there was a wave of national revulsion at what Nick Clegg called the “fundamentally corrupted relationship between politics, the media, and the police.”

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

At the moment, anyone is entitled to free advice in the police station if they are arrested. For minor cases they may get only telephone advice, for more serious cases they get a lawyer in the police station for any interview. The universal right to representation by a solicitor at a police station was enshrined in section 58(1) Police and Criminal Evidence Act 1984 in response to a series of serious miscarriages of justice in the 1970s and 80s involving unrepresented defendants.

But clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill appears  to say that advice in the police station will in future only be available if the Government decides in the individual case that it is in the ‘interests of justice’ to do so. There would also seem to be a financial barrier to negotiate, requiring both a ‘merit’ and a ‘means’ test to be applied at the point where someone has been arrested and is in police station custody. Writing in the ‘Observer’, Jamie Doward says that legal experts, including Lord Ken Macdonald QC, a former director of public prosecutions, have expressed alarm at the proposal and questioned how it would work in practice.

Richard Miller, head of legal aid policy at the Law Society, is quoted as saying: “When someone is arrested they are in the power of the state, subject to the mercies of the police officers involved. The purpose of having a solicitor acting for them is to ensure their rights are respected, that they are not physically abused, that their confessions are not forged and they are not detained for longer than legally allowed.” He pointed out that the presence of a lawyer also protects the police from a defendant making up allegations about what happened, for instance during the course of an interrogation, and he cautioned the government against interfering in any way with the absolute right to representation in police stations. “It’s there for a very good reason. When we didn’t have it, we saw the consequences,” he said.

But then things are never quite what they seem. An interesting exchange took place in the Commons on Wednesday during the debate on the second reading of the bill. Tory MP David Burrowes declared an interest as “one who has been a duty solicitor in the police station.” He asked Ken Clarke to consult carefully about the practical implementation of proposals to limit legal aid for advice and assistance in police stations, as “losing the benefit of the informed legal advice that one needs in the police station can lead to inefficient justice.”

Mr Clarke’s response is worth quoting in full: “We will look at that and consider it carefully as we proceed. At the moment, the Bill replicates a provision taken from an earlier Bill by the Labour party. It appears to give a power to take away the right to legal aid. It appears to give a power to take away access to legal advice in the police station. The last Government legislated to do that but never did it. We have no current intentions of doing it. We will consider the issue and no doubt my hon. Friend or others will return to it in Committee. I realise that there has been some concern.”

There would seem to be some room for manoeuvre here.