Court gridlock warning as government ponders ‘no deal’

Confusion over legal rights in the wake of a ‘no deal’ Brexit could create a wave of litigation causing gridlock in UK courts, the Law Society of England and Wales warned today.

As the House of Lords EU Select Committee considers the impact of ‘no deal’, the Law Society cautioned a ‘no deal’ scenario could tarnish the reputation of England and Wales as the jurisdiction of choice for dispute resolution and scupper the ability of businesses to operate effectively.

Law Society vice president Christina Blacklaws argued a ‘no deal’ scenario should be avoided at all costs.

“The confusion caused by severing all ties with the European Union will have a significant impact on our legal system,” she said.

“We can expect a tremendous volume of litigation as companies challenge government and other agencies in the courts to obtain clarity on their legal rights.

“Companies operating in the UK and EU will also face the challenge of dual regulation, a burden which will fall hardest on small and medium-sized businesses.

“Many companies will struggle to function when they are forced to wait months to understand their legal rights and obligations under a new framework.”

The legal services sector contributed £25.7 billion to the UK economy in 2015 making it the second largest in the world.

Christina Blacklaws added: “Any scenario which clogs our court system will lead to international corporations looking elsewhere to solve disputes.”

The Law Society also warned a ‘no deal’ scenario would bring an end to a whole raft of reciprocal arrangements in areas such as data protection and chemical regulation. Such a scenario would also threaten security and policing collaboration between the UK and the EU.
1 November 2017

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Solicitors uniquely placed to ensure defendants from minority ethnic backgrounds are treated fairly

Criminal defence solicitors are uniquely placed to ensure defendants from minority ethnic backgrounds are treated fairly, the Law Society of England and Wales said today.

“The Law Society is committed, as are the dedicated practitioners who work in criminal justice, to improving the system in the public interest and ensuring that all are equal in the eyes of the law,” said president of the Law Society Joe Egan, responding to David Lammy’s review of the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System (CJS).

He added: “Criminal defence solicitors have a duty always to act in their client’s best interests. We will look at what more we can do to ensure all defendants are aware that their solicitor is completely independent of the police or other criminal justice agencies, and that their efforts are entirely directed to achieving the best possible result for their client within the law and in the circumstances of the case.

“We recognise the importance of a legal profession that reflects the population it serves. The Law Society has made great strides in increasing diversity so that today the proportion of solicitors from BAME backgrounds, at 14.1 per cent, closely mirrors that of the general population.

“However, at more senior levels we have a lot of work to do before we can say with any confidence that we demonstrate diversity. We are helping firms to adopt fair recruitment and development procedures, as well as supporting them to recognise unconscious bias.”

Criminal legal aid solicitors are critical for ensuring that anyone accused of wrongdoing has a fair trial. But the viability of firms doing criminal defence work is under threat as remuneration rates for criminal legal aid work have not been increased since 1998.

Joe Egan concluded: “Criminal justice is at the heart of a democratic society and underpins the rule of law. ”

8 September 2017

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Independence of the legal profession underpins rule of law

The rule of law and the UK’s reputation for justice and fair play are underpinned by an independent legal profession, the Law Society of England and Wales said amid concerns about the relationship between the solicitors’ regulator and the Ministry of Defence published in the Observer today.

Law Society president Joe Egan said: “Britain’s standing internationally and as a jurisdiction of choice is underpinned by the independence of the legal profession and its regulators from government.

“This separation of powers ensures that the law can hold every one of us accountable, from the most vulnerable to the most powerful.

“The right to access to justice for all depends on lawyers being able to represent their clients’ cases within our framework of laws, no matter how the client or case may be perceived by the public, media or government.

“The merits of each case are decided by the relevant court, a function that is and must remain separate from government.

“Lawyers should not be hindered or intimidated in carrying out their professional duties. Nor should they be identified with their clients or clients’ causes. This principle is set out in the United Nations Basic Principles on the Role of Lawyers.”

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Law Society hails first woman to preside over Supreme Court

Our judiciary should reflect the diversity of the communities they serve, the Law Society of England and Wales said today, celebrating the announcement of Lady Brenda Hale as the first woman to be appointed president of the Supreme Court.

Law Society president Joe Egan commented: “I am delighted to congratulate Lady Hale on her appointment as president of the Supreme Court. Not only does she have an outstanding legal mind, she has also campaigned for greater judicial diversity tirelessly and with good humour for many years.”

Joe Egan continued: “We need judges who have demonstrated legal excellence throughout their careers, just as we also – crucially – need judges from diverse backgrounds to oversee some of the most important and significant cases that shape our laws.

“There are still far fewer women than men in the judiciary, but – thanks in large part to role models like Lady Hale – the number is growing steadily.

“With Lady Hale as their inspiration, I hope more women – and others from diverse backgrounds – will feel that the legal profession is one in which they can realise their ambitions.”

The Law Society also issued congratulations to all the new Supreme and Appeal Court judges, in particular the second woman to be appointed to the court, the Rt Hon Lady Justice Black DBE, and Mr Justice Singh – who will become the only serving Black, Asian, Minority, Ethnic judge at the Court of Appeal.

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Brexit bill: People’s rights must be placed centre stage

Today the UK government fired the starting gun on the biggest change to our legal system for more than 40 years – the unravelling of our relationship with the European Union. The Law Society of England and Wales and solicitor profession will work tirelessly with all parties to ensure people’s rights are put centre stage.

“Transposing vast swathes of legislation accumulated across four decades is an eye-watering undertaking and we must make sure that in the process hard won rights are not lost,” said Law Society of England and Wales president Joe Egan.

“The publication of the European Union (Withdrawal) Bill throws up opportunities – but it also throws up risks. Risks to the stability of the economy, the level of scrutiny we expect from our parliament, to the many opportunities and rights our EU membership has guaranteed.

“So in this context we are offering to convene the considerable expertise available in the legal profession to help politicians of all parties as they commence this vast task.”

The Law Society has several key calls:

· Guarantee fundamental rights
· Ensure access to justice through continued co-operation with the EU
· Maintain legal certainty during this period of upheaval
· Protect the strength of legal services which underpins the UK economy

“The challenge ahead is immense but solicitors stand ready to work with all sides to ensure that Britain’s future is bright,” said Joe Egan.

The European Union (Withdrawal) Bill is intended to ensure the same rules apply on the day after Brexit – while giving the UK parliaments the power to change them.

“We are glad that David Davis has said he will ‘work with anyone’ to make this a success and we are ready to play our part,” added Joe Egan.

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Law Commission consultation on wills a welcome step towards modernisation

A public consultation by the Law Commission is a welcome step towards updating our will-making laws to keep them fit for purpose in the 21st century, the Law Society of England and Wales said today.

The Law Commission consultation paper seeks feedback from the public on a range of issues around how wills are made and how the law protects will-makers from fraud.

“Making arrangements for after we pass away is something we all have to do, and something solicitors assist their clients with every day,” said Law Society president Joe Egan.

“While the basics of how we make wills have stood the test of time, other aspects are in urgent need of updating to reflect modern life, and this will be a welcome opportunity for solicitors to help shape a new, fit for purpose wills law.

“Our Wills and Equity expert committee have been working closely with the Law Commission throughout this project, and will continue to do so through the consultation process.”

Key issues raised in the consultation paper the Law Society will be focusing on include:
· Giving the court greater flexibility to uphold wills that do not meet legal requirements
· Using the Mental Capacity Act test to establish capacity to write a will
· Introducing a statutory presumption of capacity to write a will
· Reducing the age at which someone can make a will from 18 to 16
· The possibility of online or electronic will writing in the future.

“Some of the proposals, such as allowing the court more flexibility when there are harmless errors in a will but the deceased person’s wishes are clear, show immediate promise and are likely to get a positive response from solicitors,” said Joe Egan.

“Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people. We will need to examine these issues carefully to help the Law Commission avoid unintended consequences such changes might create.

“We congratulate the Law Commission on tackling this important law reform task and thank them for the open and constructive way they have been working with our experts throughout this project. We look forward to working with them as it continues.”
13 July 2017

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Positive elements to Queen’s Speech but whiplash plan brings sting in the tail

The Queen’s Speech for the 2017 Parliament has set out a comprehensive agenda with much that will be received positively by the solicitor profession, the Law Society of England and Wales said today.

Prominent in the government’s agenda is a package of measures to make the legal changes needed to facilitate Brexit.

“Unravelling and redefining ties and laws made over the past 40 years, while providing as much certainty to individuals and businesses as is possible is a task of real complexity, ” said Robert Bourns.

“The government’s focus on providing this certainty is welcomed, and we hope the series of bills announced today will allow Parliament to work through these issues carefully, and give them the scrutiny they deserve.

“We will continue to offer the government the expertise and insights of the solicitor profession, and encourage it to draw on that to create a new relationship with the European Union that preserves and enhances our economy, our jobs, and the rights we all enjoy.”

The prominence given to a renewed focus on protecting the rights of the most vulnerable was also warmly welcomed.

“Our laws must be accessible to the most vulnerable in our society, and it was pleasing to see that the government will give this attention in the coming parliamentary session,” said Robert Bourns.

“A significant focus on combating modern slavery, both at home and abroad; law changes to protect victims of domestic violence; and updating our employment law to reflect modern working practices are all important steps which can help those who need it most.

“The UK is a world leader in promoting human rights, and the government’s commitment actively to enhance this commitment and ensure our rights are there for all of us is to be applauded and is important to the reputation of the UK.”

Government plans to continue with reforms to modernise the court system and reduce personal injury claims met with a more mixed response.

“Continued progress towards the careful modernisation of our courts system is to be welcomed, although care will need to be taken to ensure that justice is not diluted as it is modernised,” said Robert Bourns.

“However, we are very disappointed that the government has decided to revive its misguided whiplash reforms.

“It will be a clear injustice if the government persists with denying essential legal advice to those injured through no fault of their own – if government is truly committed to targeting fraudulent claims, it should do just that.”

Robert Bourns concluded: “The Law Society looks forward to working with the government to represent the views and offer the expertise of the solicitor profession as it advance an ambitious agenda for the next two years.”

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Consumer protections swept away by regulator

News that the Solicitors Regulation Authority (SRA) is set to push ahead with changes to the rules governing solicitors was today greeted with dismay by the Law Society of England and Wales.

“The SRA’s role is to regulate solicitors to ensure consumers are protected – yet here it is opening the door for some solicitors to work in unregulated entities, sweeping away long standing rules referencing conflicts of interest, proper professional indemnity insurance and access to the compensation fund (underwritten by the profession) so if something does go wrong consumers could struggle to recover any losses,” said Law Society president Robert Bourns.

A 2016 survey of consumers conducted by Ipsos Mori showed that 86% felt solicitors’ businesses should have professional indemnity insurance.

“If solicitors are allowed to work in unregulated entities the protections that attach to the communications between solicitors and clients (and vice versa) may not apply. Clients seek advice about deeply private and often sensitive issues – they must be able to rely on the exchanges with their solicitor being covered by legal professional privilege as they currently are for solicitors in regulated entities.”

Responding to a 2016 Law Society survey, a substantial number of solicitors expressed real concern with many of the proposed changes to the handbook including 82% saying encouraging solicitors to work in unregulated businesses would damage the solicitor brand – a brand that the Competition and Markets Authority (CMA) identified as synonymous with quality advice.

Robert Bourns added: “The purpose of the SRA is to regulate the solicitor profession ensuring the protection of consumers – that it is pursuing a deregulatory agenda to the detriment of both members of the public and a profession regarded the world over as the gold standard is frankly baffling.

“At the moment a member of the public can walk into a solicitor’s office on any high street in England and Wales and be assured they are fully protected in the unlikely situation something goes wrong – now, if the SRA proceeds, we will have the current clarity blurred so consumers cannot easily tell what kind of outfit their solicitor works for.

“For the SRA to claim that these consumer protection risks can be managed by a ‘consumer information strategy’ to be developed in the future, is simply not realistic. They acknowledge the harm of consumer risk and confusion (also recognised by consumer groups and the CMA), but carry on regardless.”

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Accelerated asylum appeals put speed before justice

Accelerating the appeals process for people seeking asylum who have been detained would risk undermining justice and fairness, the Law Society of England and Wales said today, urging the Tribunal Procedure Committee to reject plans put forward by ministers.

Law Society vice president Joe Egan said: “Rushing detained asylum and immigration appeals risks unjust decisions and unlawful removals.

“In an area of law where the stakes for appellants are so high, we must maintain an impeccable standard of fairness.

“There must be effective judicial oversight of asylum and immigration appeals. Quicker, fairer hearings can be achieved under the existing rules with a better resourced appeal system.”

Home Office data has revealed more than 40% of asylum and immigration appeals are successful, underlining the importance of an accessible and fair appeals system.

Joe Egan said: “It is for the courts to decide the merits of each case. An administrative decision by the Executive to fast track an appeal would pre-empt the outcome, remove vital judicial oversight, disenfranchise the appellant and inevitably prejudice the case.”

The proposed scheme, which extends from the 12 days ruled unfair in 2015 to 25 days, imposes a severely restricted timetable for the determination of often complex asylum appeals. As appellants would be detained during this time, they would have limited access to their solicitor, further undermining their ability to assert their rights.

Nor do the government proposals adequately show how vulnerable people will be protected or screened out of the fast track scheme. For example, it would be extremely damaging to detain someone with mental health issues, who has been tortured or raped.

Joe Egan added: “There is a real risk that speed would prejudice the integrity of the appeal process for people who are often extremely vulnerable and anxious, who may have suffered a terrifying ordeal.”
18 April 2017

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Caution at competitive tendering for housing duty contracts

Clarity over new rules for solicitors’ firms wishing to tender for 2018 civil legal aid contracts were today welcomed by the Law Society of England and Wales.

However, the Society has considerable concerns about a proposal for price-competitive tendering for Housing Possession Court Duty Schemes which will be consulted on until 17 March 2017.

Duty scheme contracts are issued on the basis that there is only one for each court – the process therefore has to be competitive – but in a new departure the Legal Aid Agency (LAA) has said this time it has to be price competitive.

“We see considerable problems in price-competitive tendering – the cheapest offering will not necessarily be the best. This could result in a race to the bottom which may impact on professional standards,” said president of the Law Society of England and Wales Robert Bourns.

“A price war will not improve services and could negatively impact on clients.”

“The LAA needs to set out what steps it will take to mitigate this risk. It should also keep in mind that cuts in payment only compound years of cuts for the solicitors that look after the interests of our most vulnerable citizens. It may mean that contracts which are already at best only marginally economically viable for firms become unsustainable.”

Though the Law Society has concerns about the price-competitive tendering element, there were elements to the proposals which it welcomed.

“In the bulk of cases contracts will be awarded to those firms that match the LAA’s stipulated standards and this is something we can welcome as it helps underpin quality.”

The LAA published its headline intentions for the 2018 civil contracts on Friday – for most categories there is no significant change from the previous tender process or the contract terms.

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