COURTS
Independent Review of Criminal Legal Aid
The Independent Review of Criminal Legal Aid said that an immediate 15% injection of funding was the bare minimum needed to keep the beleaguered criminal justice system functioning and ensure access to justice for victims and defendants
- Government rhetoric suggested they had understood the seriousness of the crisis, but detailed examination of the consultation has revealed that the proposals fall substantially short of what they first appeared to be
- The Ministry of Justice has confirmed that the total value of the package of measures for solicitors amounts not to the often-quoted 15% but only 9%.**; we have stated that due to this we can no longer support the government’s proposals
- The crisis in our criminal justice system has seen backlogs in courts spiral, leaving victims, witnesses and defendants waiting years for justice
- Without necessary investment at least on the scale identified in the review the backlogs will continue, and it is likely that in five years’ time, we will no longer have a criminal justice system worthy of the name
- As we know, the crisis is acute already, and Sir Christopher had identified a sensible and affordable way forward. The government has botched its response and is woefully inadequate
- When considering whether to take up new criminal legal aid contracts, our members will need to think long and hard as to whether they believe there is now any prospect of a viable economic future in criminal legal aid. Sadly, unless the government changes tack, we no longer believe that there is
*Dominic Raab’s statement is available to read here
**See the Ministry of Justice impact assessment, page 12, table 3, recovered on 24 March 2022
See the latest backlog figures
As of February 2022, there were just 1,062 firms holding a criminal legal aid contract compared with 2,010 in October 2007
See our duty solicitor heatmaps
Guidance on undertaking advocacy during Criminal Bar Association ‘no returns’ action
In protest at the MoJ’s actions, the Criminal Bar Association (CBA) has voted to institute a ‘no returns’ policy from 11 April 2022. So, where the barrister instructed on a case becomes unavailable, for example due to another case overrunning, barristers following this policy will decline to take on the case.
The CBA’s disagreement with government differs from our objections to the proposals; however both we and they are of the view that the MoJ’s proposals are inadequate to address the crisis in the criminal defence profession which Sir Christopher described so clearly.
It is clear that criminal law is no longer an attractive career option for young solicitors or barristers. Data we published in 2018 painted a very bleak picture of a future England and Wales littered with ‘advice deserts’, where the remaining criminal solicitors will have retired with no young solicitors coming in to take their place. Updated data we published earlier this year confirms, unsurprisingly, that the position is even worse now than it was then.
We recognise that collective action by the profession as a whole, or by local law societies or groups may be caught by the UK competition law prohibition of anti-competitive agreements and trade association decisions and are not calling for such action to be taken. But in the current circumstances, it will not be surprising if many solicitor decided independently that for professional or commercial reasons, they are unable to take on work where they cannot be confident in either of finding an advocate for the case, or of it being economically viable to undertake the advocacy in-house.
Our advice remains broadly the same as in 2018:
- all solicitors have duties under the SRA’s Code of Conduct to their clients and to the court, and should act in their client’s best interests in liaising with the court and the Legal Aid Agency to manage the impact of the inability to find an advocate.
- Solicitors should consider the following SRA Principles, which are all relevant to a situation in which the solicitor is being asked to accept instructions on a matter that they do not feel competent to handle.
- The Code of Conduct also provides at 3.2 that solicitors should ensure that the service provided to clients is competent and delivered in a timely manner, and this has the clear implication that solicitors should not undertake work which is outside their competence.
- Thus, while a solicitor-advocate is free to take on such work if they choose, they are under no obligation to do so, and positively should not do so if they believe the matter to be beyond their competence.
We know that the judiciary will be keen to ensure the smooth administration of justice, and, particularly with the scale of the current backlogs in the system, will be reluctant to see cases adjourned.
However, we would like to emphasise that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities, if they do not feel competent to do so. Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found.
We encourage all firms to consider their own circumstances in making any decision as to whether or not to take on the advocacy in a case where counsel has declined or ceased to act.
Moreover, if a solicitor is aware that it may be impossible to find a suitable advocate in a case, they should consider whether it is appropriate to take on the matter at all.
If you are in any doubt as to what course of action you should take in a particular case, we encourage you to seek appropriate advice on your position, whether from the Practice Advice Service, the SRA’s professional ethics team or your own legal advisers.
- See the full guidance here
‘No-fault’ divorce
The Divorce, Dissolution and Separation Act has now come into force, meaning divorcing couples are no longer required to assign blame for the breakdown of their marriage.
We are delighted that the divorce system, which has been unchanged for 50 years, will finally be modernised to reflect the society we live in.
The changes will cut unnecessary conflict from the separation process- allowing couples to move on amicably and removing the need to prove fault-based fact against their ex-partner or spend years still married to obtain a divorce, exacerbating tensions.
This reform will bring our marriage laws into the 21st century and ensure that, in the future, separating couple and their children do not suffer unneccesary conflict.
PC Fee consultation
As a member of the Law Society, you are part of a community of over 200,000 solicitors across England and Wales. As your professional body, we have been proud to represent the interests of solicitors for almost 200 years.
Collectively, the legal profession contributes £60bn to the UK economy and facilitates trillions of pounds of transactions globally, upholding the law and delivering justice. Our job is to champion, protect and support your interests, as well as to promote access to justice and defend the rule of law both domestically and internationally.
The fees you pay as an individual, or that your firm pays on your behalf, are the main source of income for the Law Society. The income from these fees determines what we can plan and undertake for you, the profession, and wider society.
We have progressed with developing our next Corporate Strategy for the period from November 2022 until October 2025, setting out our new vision, objectives, and beneficial outcomes for the forthcoming three years. This vision has the full support of our Council and Board, and they have urged us to be ambitious in our plans to maximise the impact and value we give to our members. We need the funding to support this ambition and ensure we have the necessary resources to achieve it in the challenging times ahead. As your professional body, we want you to tell us what you want us to prioritise, and the level of ambition you want us to have.
This is the first year in several years that we are seeking an increase in the income we receive from the PC fee after taking a £3million (10%) cut during the pandemic in 2020 which was sustained in 2021 too. Whilst we know an increase is not desirable for members, we believe that the rationale and data we have shared through the consultation will help members understand why an increase is necessary. We want to be able to effectively support, promote and protect the profession and need appropriate resources to achieve that. This is coupled with the efforts we have already been making to become more efficient and driving our commercial income too.
- The survey opened on 7 April and will remain so until 11:59pm on Friday 27 May 2022
- All responses are completely anonymous
- It should take around 10 minutes to complete
Practising certificate fee consultation and our new corporate strategy | The Law Society
International
Expansion of resources on EU mobility
Further resources are becoming available for solicitors travelling on business to the continent as the EU Commission has agreed to expand its online portal and the Law Society is updating its own guidance.
The Commission has told the UK government that it is working to publish country-specific information on business visits to the EU under the “International service provider” section of its Immigration Portal. This section is available for each member state by clicking on the interactive map.
This follows the UK government raising with the Commission (at the Law Society’s request) the importance of complying with the transparency commitments under the EU-UK Trade and Cooperation Agreement (TCA). Article 145 of the TCA commits the UK and EU to “make publicly available information on relevant measures that pertain to the entry and temporary stay of natural persons of the other Party”, including documentation required and conditions to be met.
Member States including Belgium, France, Spain and Austria have published information in line with their Art.145 commitments, and we will continue to monitor the page to ensure the others follow suit. Meanwhile, the Law Society is working to expand its EU mobility guide following our recent virtual briefing on business visits to Belgium, France and Germany (held on 15 March). The three immigration experts who participated in the event will work with us to include country-specific information on these three markets. We are also likely to hold future similar sessions covering other countries (ex- Italy, Spain, Portugal, and coutnries in Eastern Europe).
Worth also noting that following an application process, the Law Society has been appointed to the Government’s Domestic Advisory Group, which will tackle issues around UK/EU trade. I will let you know any developments here as and when possible.
Law firms establishing in France
The French National Bar (CNB) is looking for “concrete examples” of issues faced by law firms in relation to the inability of UK entities to open new branches in France after Brexit.
Legal structures (including LLPs) which established in France by the 31 December 2020 were grandfathered, but UK law firms can no longer open new branches in France from 1 January 2021. They may also be subject to restrictions in their ability to make changes to their partnerships.
We have been engaging with the CNB on the issue who have in turn raised it with the French government, which is now consulting with the Council of State (Conseil d’Etat) on the matter.
While there is support from the CNB to find solutions, they have asked us to provide examples of how these matters are impacting firms concretely, alongside details on why the alternatives available in France are not suitable.
We are keen to engage with members on this and we encourage those facing issues – both now and/or in future – to get in touch.
Start of negotiations for a FTA with Canada
The UK and Canadian governments have announced the start of negotiations towards a free trade agreement (FTA). The first round of negotiations will took place in London a few weeks ago.
The Law Society of England and Wales have welcomed the start of these trade negotiations as Canada is an important market for legal services for our members – in 2019, the UK exported £107.5 million in legal services to Canada. We are pleased to see the UK government specifically recognised the potential for these negotiations to boost trade in legal services.
In advance of the FTA negotiations, the Law Society contributed to the UK government’s consultations and has worked closely with the Ministry of Justice and with members and firms with an interest in the Canadian legal services market to ensure that market access for legal services are a priority in the negotiations. We will continue to monitor negotiations closely to ensure the agreement is of greatest benefit to our members.
Cyber
New questionnaire launched to help tackle cyber threat
In light of the ongoing threat from ransomware attacks and the need for better tools to assess information security, we’ve jointly produced a questionnaire with the Bar Council that we recommend members use when instructing chambers. We launched this at our Risk & Compliance conference toward the end of last month, and it has been produced to help our members understand the information security arrangements that barristers’ chambers have in place.
We want to help law firms understand how the chambers they instruct process information.
We hope that by having an agreed standardised questionnaire, the administrative burden will be much reduced for both the chambers responding to the questionnaire, and the law firms assessing those responses.
With just 26 questions compared to other non-standardised forms, which are often much longer and ill-suited for the purpose of checking Chambers’ cybersecurity, it is hoped the questionnaire will reduce the administrative burden for both the Chambers responding and the law firms assessing those responses.
The Law Society and Bar Council recommend that Chambers work with their IT suppliers and maintain an up-to-date copy of their responses to make available to instructing solicitors and that they should aim to revise these every six months.
- See the questionnaire here and here
- For advice and up-to-date information about keeping your practice cyber secure visit here
Regulation
Strategic lawsuits against public participation
The Law Society have responded to news that the UK government is set to strengthen rules on strategic lawsuits against public participation (SLAPPs).
The use of SLAPPs has long been controversial in our jurisdiction and elsewhere because of the impact they can have on less well-resourced clients and on freedom of speech. It is in the public interest that our justice system works for all people regardless of their means and produces fair outcomes, so we welcome the government’s initiative to strengthen and clarify the rules surrounding this kind of lawsuit
In the coming weeks we hope to meet with interested parliamentarians and our members to hear their views, which will inform our response to the government’s consultation.
A working group has been formed by various experts and is being chaired by Jonathan Goldsmith (currently meeting twice a week) – our draf response to governemnt shall be ready for circulation after Easter.
Sanctions on Russia
The government has imposed a tranche of sanctions on Russia in response to the situation in Ukraine. Read our guidance on the UK sanctions regime to find out what steps you and your firm must take to comply with the regime and safeguard the reputation of the profession.
UK sanctions regime
Sanctions on Russia
DIVERSITY & INCLUSION
Diversity Access Scheme (DAS) applications now open
Our DAS scheme is a scholarship with a difference. It’s open to those looking to complete the LPC or SQE who need help with funding, accessing real work experience opportunities and meaningful mentoring who might otherwise struggle to get what they need to succeed. The 2022 application period closes on 20 April.
>Find out how to apply and how to sponsor the scheme
>Download our report on the 2021 applications
Pre-Application Judicial Education (PAJE) programme
Applications are open for the Pre-Application Judicial Education (PAJE) programme. The programme helps lawyers from under-represented groups who are interested in becoming a judge to feel more confident about applying. The course for 2022 will take place as a virtual, judge-led discussion group. Applications close on Thursday 14 April.
Open consultations
We respond to consultations from government departments and other organisations to influence changes in the law on behalf of our members. Find our latest consultation responses on our website.
Our latest responses include the Human Rights Act reform, the LSB’s draft statement of policy on ongoing competence, fixed recoverable costs in lower value clinical negligence claims and mandatory disclosure rules: draft regulations.
This update was provided by the Law Society representative Beth Quinn at Liverpool Law Society’s monthly meeting of directors held on 12 April 2022.