U-turn on probate fees hike welcomed

The government’s u-turn on a probate fees increase was today welcomed by the Law Society of England and Wales, which ran a campaign to stop the fee hike.

Under the government’s proposals, probate fees would have risen from the current fixed fee of £215 – or £155 with a solicitor – to a sliding scale of up to £6,000 depending on the size of the estate.

“A hike in probate fees would have been a tax on grief,” said Law Society president Simon Davis.

“We campaigned vigorously against the increase on behalf of bereaved families and are relieved the government has listened to reason.

“It is inherently unfair to expect the bereaved to fund other parts of the courts and tribunal service when they have no other option but to apply for probate.

“In its review of court fees government should bear in mind that it is a false economy to impose charges that go beyond cost recovery. Equal access to justice is a fundamental part of the rule of law.”

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New leasehold information rules a big victory for consumers – Law Society

The endorsement by ministers of proposals to give consumers significantly more information early in the home buying process was today given a partial welcome by the Law Society of England and Wales.

“It is encouraging to see government has recognised just how much easier it will be for consumers to make informed decisions if full information is provided at the very beginning of the home buying process,” said Law Society president Simon Davis.

“Conveyancing solicitors are usually involved at a much later stage, by which time clients may have already emotionally committed to the purchase – and may be less open to hearing advice about onerous conditions. This can make it much more difficult to advise. A time limit of 15 working days for developers and estate agents to provide the necessary information is therefore entirely appropriate and to be welcomed.

“It is particularly pleasing that alongside the government-proposed key features document for new build homes, there will also be some provision for the second-hand market. This will help consumers to make comparisons between properties they wish to view.

“We are keen to see a satisfactory resolution to all of the issues currently facing affected owners and prospective purchasers of leasehold properties. Although these proposals appear to be a step in the right direction, we look forward to seeing further details of how the proposed legislation will work in practice.”

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Haphazard embrace of AI puts justice at risk

The ad hoc use of complex algorithms in the justice system needs urgent oversight, the Law Society of England and Wales said as it released the results of a year-long investigation.

The Law Society Technology and Law Policy Commission publishes its report on algorithms in criminal justice alongside an interactive map that allows the public to see for the first time the beginnings of an overview of where algorithms are being used to assist decision-making across the justice system across England and Wales.

“Police, prisons and border forces are innovating in silos to help them manage and use the vast quantities of data they hold about people, places and events,” said Law Society president Christina Blacklaws.

“Complex algorithms are crunching data to help officials make judgement calls about all sorts of things – from where to send a bobby on the beat to who is at risk of being a victim or perpetrator of domestic violence; who to pick out of a crowd, let out on parole or which visa application to scrutinise.

“While there are obvious efficiency wins, there is a worrying lack of oversight or framework to mitigate some hefty risks – of unlawful deployment, of discrimination or bias that may be unwittingly built in by an operator.

“These dangers are exacerbated by the absence of transparency, centralised coordination or systematic knowledge-sharing between public bodies. Although some forces are open about their use of algorithms, this is by no means uniform.”

The Law Society’s key recommendations:

Oversight: A legal framework for the use of complex algorithms in the justice system. The lawful basis for the use of any algorithmic systems must be clear and explicitly declared
Transparency: A national register of algorithmic systems used by public bodies
Equality: The public sector equality duty is applied to the use of algorithms in the justice system
Human rights: Public bodies must be able to explain what human rights are affected by any complex algorithm they use
Human judgement: There must always be human management of complex algorithmic systems
Accountability: Public bodies must be able to explain how specific algorithms reach specific decisions
Ownership: Public bodies should own software rather than renting it from tech companies and should manage all political design decisions

Christina Blacklaws added: “Within the right framework algorithmic systems – whether facial recognition technology, predictive policing or individual risk assessment tools – can deliver a range of benefits in the justice system, from efficiency and efficacy to accountability and consistency.

“We need to build a consensus rooted in the rule of law, which preserves human rights and equality, to deliver a trusted and reliable justice system now and for the future.

“The Law Society is grateful to professors Sofia Olhede and Sylvie Delacroix, whose expertise helped the Technology and Law Policy Commission formulate practical, specific recommendations for government and public bodies to minimise the risks and maximise the benefits of complex algorithms in the justice system.”

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Legal profession must tackle bullying and harassment head on

The legal profession must tackle bullying and harassment in the sector head on, the Law Society of England and Wales reiterated today, following a report by the International Bar Association (IBA) on the high reported incidence in the global profession.

“We will not tolerate sexual harassment or bullying in the legal sector,” Law Society president Christina Blacklaws said.

“Just as anyone is protected by the law, they should also be protected by employers – law firms included – which have a duty of care to their employees, contractors, clients and visitors.

“Working environments should be safe for all, with clear policies to prevent harassment as well as accessible, safe procedures to deal with any complaints.

“Anyone who has experienced sexual harassment should be able to feel they can report it safely and with the confidence they will be taken seriously.

“Solicitors have professional and ethical obligations that mean anyone found guilty of harassment is likely to face disciplinary action by the regulator as well as any civil or criminal proceedings.

“A Women in Law Pledge – the result of widespread collaboration across the legal profession – will launch next month. It commits signatories to tackle sex discrimination, bullying and sexual harassment wherever it occurs in the workplace.

“It is incumbent on all of us to work to end bullying and harassment of any kind.”

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Weinstein whistleblower calls on lawyers to consider ethical boundaries

Non-disclosure agreements (NDA) must strike a balance between the rights of the client and the wider public interest, the chair of the Law Society of England and Wales employment law committee warned.

Max Winthrop was debating the subject with Zelda Perkins, a whistleblower involved in the Harvey Weinstein case.

The event was organised by the Law Society as a contribution to the recent debate on the role of solicitors in the use NDAs and confidentiality clauses – and what role ethical considerations should have.

“Solicitors have a responsibility to stay on the right side of ethics when drafting confidentiality clauses,”said Zelda Perkins.

“We must remember that there is disparity of power between a claimant and their employer. Even if well-advised, claimants are automatically in a position of weakness.

“There can be enormous pressure upon claimants to sign non-disclosure agreements without fully understanding the long-term implications.”

Recent high-profile cases have proven a cause for concern, and the Law Society has been working with government to protect those who may be vulnerable. We have submitted written evidence on the law relating to the use of confidentiality clauses where harassment is alleged and made suggestions for possible improvements. 

“There will be situations in which confidentiality clauses are entirely appropriate – and in some instances, in the interests of the claimant and employer,” said Max Winthrop, chair of the Law Society employment law committee.

“However, the boundaries of these agreements must be made clear to clients and to claimants – in particular, they cannot prevent the reporting of criminal behaviour.

“With the enormous public scrutiny on this issue, it’s right that solicitors consider where responsibilities lie – to their client, but also to the public interest.”

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Stringent protections are paramount when justice is delivered through technology, cautions Law Society

Legislation intended to pave the way for online justice – including in criminal trials – will be carefully scrutinised by the Law Society of England and Wales to ensure the most stringent protections are put in place.
Responding to the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill, Law Society president Joe Egan said: “Putting technology to work to help deliver justice is reasonable so long as there are appropriate safeguards.
“We are likely to press for safety measures to be included within some areas of the legislation.
“In particular, we believe online indications of a plea in criminal cases should only be permissible where the defendant is represented.
“It’s one thing to be able to enter a plea and be convicted online in very minor cases, as you currently can by post. But we will want to see the most stringent protections against ‘mission creep’ so that online justice is not used for more serious criminal offences.
“This bill includes a number of measures which will be significant in advancing Her Majesty’s Courts and Tribunals Service’s (HMCTS) reform programme, and will give Parliament its first opportunity to engage in detail with the programme.
“A modernised court service and efficient use of technology could benefit all court users, and will hopefully allow for court staff to deal with ‘routine matters’ and free up judges’ time to concentrate on other matters.
“Technology has an important role to play, but it is not the silver bullet. A recent National Audit Office report has highlighted that this programme has significant funding gaps. We are aware that facilities are not yet in place across all courts.
“We hope that, with this bill, more funding can be injected into the court modernisation programme to ensure it is sustainable.”

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Let’s not waiver goodbye to consumer protection

News a key legal regulator has given the go-ahead for an unregulated business to start employing solicitors to advise its clients was met with alarm by the Law Society of England and Wales which said rules were being relaxed without proper scrutiny.

Law Society vice president Christina Blacklaws said: “Ad hoc regulation is no regulation at all.

“This waiver of the usual rules for one particular company allows a fundamental change to the regulatory framework by the back door. This is a change which has been widely opposed by both the profession and consumers.

“A rule change with such far-reaching consequences for client protection should be reviewed by the Legal Services Board to ensure it doesn’t harm the public interest before being introduced.

“If a solicitor works in an unregulated, profit-making entity their clients cannot rely on a regulated guarantee of robust professional indemnity insurance, access to the solicitors’ compensation fund, or legal professional privilege.

“It benefits nobody if regulatory change is introduced piecemeal and without proper scrutiny. Regulation exists to protect consumers, providing consistency and certainty. It preserves the strong global reputation of our legal system.

“If the protection afforded by a solicitor is no longer certain, trust in the profession may be eroded and in future fewer people may seek legal advice at crucial points in their life.

“The SRA must stop eroding client protections.”
8 May 2018

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Windrush crisis underscores need for immigration legal aid

Cuts to legal aid for immigration issues mean members of the Windrush generation may be denied justice as they try to settle their status and rebuild their lives, the Law Society of England and Wales warned today.
Law Society president Joe Egan said: “As far too many people who came to the UK as children now know, an immigration issue can quickly spiral out of control with disastrous consequences – jobs are lost, health and social services denied, in the worst cases people are detained and face deportation, despite having every right to call this country their home.
“When the fallout can be so catastrophic, we believe that legal aid is essential so anybody facing such an unjust scenario can get legal advice right at the outset, whatever their circumstances.
“The results of the government’s long-awaited review of the impact of cuts to legal aid are urgently needed. Thousands of people who were eligible for legal aid on one day (31 March 2013) became ineligible the very next day. When people cannot access advice or protect their rights, effectively those rights do not exist.
“The experiences of the Windrush generation illustrate how easily people can fall foul of complex immigration rules and an administration that routinely makes incorrect decisions. It is only just that everyone should have access to legal advice to navigate this labyrinthine system.”
More than 22,000 people with immigration problems received legal advice through legal aid in the year before the cuts. By 2016 just three people were able to get this vital support.
Joe Egan added: “We know 50% of Home Office immigration decisions are overturned when reviewed by a judge – this is clear evidence the system is broken.
“Legal aid is a lifeline for the vulnerable. Early legal advice can help people resolve problems quickly and prevent them from having to rely on welfare support or involve the courts. This makes a real difference to the individual and saves taxpayers money.”
Of the Home Office helpline set up for the Windrush generation, Joe Egan said: “It is vital that anyone affected gets independent legal advice so they know their rights and understand clearly what they need to do to settle their status and claim compensation if they have suffered as a result of Home Office errors.
“The government should make sure that anyone who cannot afford to get independent legal advice is supported to do so.
“Removing lawyers from the process is a false economy and may prove damaging for people who rely on the Windrush helpline.
“A properly funded legal aid system is an essential public service that ensures equal access to justice for all.
“We urge the government to restore and protect access to justice for everyone, regardless of their economic circumstances.”

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Lords’ collision with new whiplash Bill shows legislation has a long way to go

An overhaul of rules for personal injury claims will create the paradox that someone hurt in a road traffic accident will be entitled to less compensation than if they had sustained the injury another way, the Law Society of England and Wales has warned.

New legislation being pushed through Parliament – the Civil Liability Bill – will mean road users injured through no fault of their own will struggle to get justice. The Bill faced criticism during a four-hour Lords debate for failing to define a whiplash injury properly.

Law Society president Joe Egan said: “We are concerned about the lack of clarity because fixed levels of compensation are set to be imposed for whiplash injuries. The Law Society is therefore calling for the definition of whiplash to be set by medical experts.”

During the debate peers also highlighted the need to exclude vulnerable road users, such as cyclists, pedestrians and horse riders from the measures in the bill. Concerns that savings for insurers would not be passed on to consumers were also raised.

Law Society president Joe Egan said: “It is clear peers recognise that these new proposals will mean victims will receive far less than under current levels of compensation. Ministers need to address these concerns.

“When combined with Ministry of Justice (MoJ) plans to increase the small claims limit, the amount of legal advice and guidance that can be obtained from a solicitor in these cases will be severely restricted.

“Our concerns about the legislation were echoed by Lord Marks, who stated that the increase in the small claims limit will “deny very large numbers of genuine claimants legal advice and representation.”

Joe Egan added: “Without representation claimants will end up either not bringing claims or have no choice but to go it alone.

“Going it alone with a road traffic accident claim up to the value £5,000 is wholly unrealistic and will prejudice thousands of people who have suffered injury through no fault of their own.

“This legislation has a long way to go and we will continue to oppose these reforms.”
27 April 2018

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Criminal defence lawyers face extinction amid justice crisis

Criminal defence lawyers in England and Wales could become extinct, the Law Society of England and Wales warned today as it unveiled new data showing a looming crisis in the number of defence solicitors.
“The justice system is facing a cliff edge scenario; criminal duty solicitors are part of an increasingly ageing profession, and government cuts mean there are not enough young lawyers entering the field of criminal defence work,” said Law Society president Joe Egan.
“If this trend continues, in five to ten years’ time there could be insufficient criminal defence solicitors in many regions, leaving people in need of legal advice unable to access their rights.”
A Law Society heatmap shows that across Dorset, Somerset, Wiltshire, Worcestershire, West Wales and Mid Wales, over sixty per cent of criminal law solicitors are aged over fifty years old*.
Meanwhile, in Norfolk, Suffolk, Cornwall and Worcestershire there are no criminal law solicitors aged under thirty five, with only one each in West Wales and Mid Wales, and only two in Devon.
A person who is arrested on suspicion of wrongdoing has the right to ask for the local ‘duty solicitor’, who can provide legal advice free of charge. Duty solicitors are available twenty four hours a day and are independent of the police.
The police station advice scheme was set up in the wake of a series of scandals in the late 1970s and early 1980s, when a significant number of convictions were overturned due to police misconduct against suspects. These solicitors protect suspects against inappropriate treatment, but also the police from false allegations of mistreatment.
“Criminal justice is at the heart of a democratic society and duty solicitors ensure a fundamental part of the justice system is upheld,” Joe Egan said.
“Twenty years without any increases in fees, and a series of drastic cuts have pushed the criminal justice system to the point where lawyers can no longer see a viable career doing this work.
“Access to independent, expert legal advice is an important right which ensures fair access to justice. If a suspect cannot access free advice and representation, a fair trial would be jeopardised, and cases would collapse.
“The Law Society is calling on the government to take action and conduct an economic review of the long-term viability of the criminal legal aid system and to guarantee that criminal legal aid fees will rise with inflation.”
The map is available here: HEATMAP

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