Lack of safeguards for slavery survivors

The Law Society has submitted evidence to the Modern Slavery Bill Public Committee. While the Society supports plans to address modern slavery, it raised concerns including the lack of adequate safeguarding of survivors of slavery and trafficking.
If passed, the Modern Slavery Bill will be the first of its kind in Europe, and one of the first attempts globally to specifically address the ongoing issue of slavery and trafficking in the 21st century. Although the Society supports the proposals it found there to be a number of issues with the Modern Slavery Bill.
The main concerns are:
– the need to protect children
– lack of clarity, precision and simplicity of offences listed
– concerns that some criminal activity in relation to Modern Slavery will either not be caught by the provisions, or the hurdles required to overcome in mounting a prosecution will prevent effective law enforcement
– concerns the offences clauses in the Bill are overly complex and do not reflect international definitions of trafficking and forced labour
– slave masters and traffickers will be able to use the “Double Criminality” requirement (that the offence being investigated by the requiring country is also an offence in the receiving country) to avoid successful prosecution
– that the proposed Anti-slavery Commissioner will not be effective without being independent from the Home Secretary
President of the Law Society, Andrew Caplen, said:
“The Law Society applauds the government in taking seriously the ongoing problem of modern slavery, and their plans to address the issue, but has reservations about the effectiveness of the proposals. The rule of law and the protection of human rights underpins the work of the legal profession, and of the Society. With the British government leading the way on modern slavery legislation it is of paramount importance that the Bill safeguards victims effectively and sets an example in this field.”
On 10 December 2014, the Law Society will be hosting its annual Human Rights Conference. The event takes place on International Human Rights Day and includes speakers from the profession as well as human rights organisations on global issues including modern day slavery and trafficking.

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Stark warning on emergency surveillance legislation

The Society issued a warning today following the government’s announcement that it would introduce emergency surveillance legislation in response to the European Court of Justice Ruling in April. Legislation which affects the privacy and freedoms of the individual should, whenever possible, be subject to full Parliamentary scrutiny.
New Law Society president Andrew Caplen said: “The government’s review of the Regulation of Investigatory Powers Act is welcome. We have been calling for a review of RIPA and associated legislation for some years.
“However, we are concerned that introducing emergency legislation does nothing to enhance the rule of law or address the fact that we are increasingly becoming a ‘surveillance society’. The history of emergency legislation is not exemplary, with laws being used for purposes for which they were not intended. Today’s news is particularly worrying, given the emergency legislation will go against a court judgment on human rights.
“There needs to be a public debate about how to strike the right balance between security, freedom and privacy. We need to simplify and clarify a complex and confusing legal framework and ensure that it protects human rights.”
The Law Society is calling for:
· A wide-ranging review of the legal and practical framework of surveillance in the UK
· Explicit legislative protection for legal professional privilege in legislation like RIPA.
· The development of a future legislative framework that reflects public consensus as well as the expert views of relevant technologists, jurists, academics and civil liberties groups.
Andrew Caplen will be leading a debate on the topic of surveillance at the American Bar Association conference in Boston this August as part of our ongoing work in this area.
10 July 2014

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Benefits of family law changes undermined by legal aid cuts

The benefits of speeding up the way that the family law courts work from Tuesday, April 22nd 2014 will be undermined by cuts to civil legal aid, the Law Society said today.
The changes will speed up court processes for dealing with issues arising from divorce and separation, and for taking children who are at risk into local authority care. However the fact that more and more people are representing themselves in the family courts as a result of civil legal aid cuts introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is leading to more delay.
The main changes coming into effect in April include:
· Restrictions on the use of expert evidence, requiring judges to have regard to the impact of delay on the child when deciding whether to permit expert evidence.
· The creation of a single Family Court for England and Wales which should operate more efficiently for court users.
· A 26 week time limit for completing care and supervision cases, to speed up the process of finding a permanent placement for a child. A judge will have the discretion to extend cases by up to 8 weeks at a time if necessary.
· Child Arrangements Orders’ in place of ‘residence’ and ‘contact’ orders.
· A requirement to attend a meeting to find out about mediation before making an application to the family court in disputes over money or the upbringing of children.
The Law Society has played a key role in developing these changes with government and the family judiciary.
Law Society President Nicholas Fluck said: “The Law Society supports these changes, but the problem for many separating and divorcing couples is getting access to legal advice to help them through the court process, or to find alternatives to court. The cuts in legal aid for family law have put people off from seeking advice and support from solicitors who can explain where they stand and what their rights are.
“It’s important that victims of domestic violence can still get legal aid and that legal aid is still available for family mediation. However the fact that more and more people are representing themselves in the family courts is leading to more delay.
“Mediation can help couples avoid the stresses and strains of court hearings, but it is not suitable in all disputes, particularly those where one party is in a significantly weaker position than the other. In these cases a solicitor is required to protect a client’s interests and be on their side.’’
Nicholas Fluck added: “It is entirely right that the new child arrangements orders seek to place the emphasis on the rights and welfare of the child, not the interests of the parents, but there are limits to what changes in terminology alone can achieve – many people still refer to ‘custody’ of a child.
“The new Single Family Court should result in better allocation of cases and improved judicial continuity and case management, which will speed up private and public law hearings.”
“Delays in care proceedings had reached an unacceptable level, and everyone in the system – judges, lawyers, social workers – has been working hard to reduce them, with some success. There is a balance to be struck between investigating every available option and causing more harm than good through delay. The real test will be how judges exercise discretion in those cases that need more time.”
“It is right that expert evidence should be restricted to that which is necessary for the court and which is not available through other sources. The problem now is not that too many experts are being called but that there are too few experts to go around, following cuts in their legal aid fees and the Legal Aid Agency’s refusal to pay fees in some cases, even when the judge has said that they need the expert report.’
22 April 2014

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Leave a digital legacy after your death

People should leave clear instructions about what should happen to their social media, computer games and other online accounts after their death, according to the Law Society.
Having a list of all your online accounts, such as email, banking, investments and social networking sites will make it easier for family members to piece together your digital legacy, adhere to your wishes and could save time and money.
Not making your digital legacy clear could mean important or sentimental material – such as photographs on social networks – is never recovered.
Digital assets can also include music, films, email accounts and computer game characters.
Gary Rycroft, a member of the Law Society Wills and Equity Committee said people should not assume family members know where to look online and to make details of their digital life absolutely clear.
“If you have a Twitter account, your family may want it deactivated and – if you have left clear instructions – it will be easier for your executors to have it closed. If you have an online bank account, your executors will be able to close it down and claim the money on behalf of your estate.
“This is recognised in The Law Society Wills & Inheritance Quality Scheme (WIQS) Protocol which recommends completion and maintenance of a Personal Assets Log including digital assets and consideration of how to ensure that those dealing with the estate will be able to access those assets.
“This is preferable to leaving a list of passwords or PIN numbers as an executor accessing your account with these details could be committing a criminal offence under the Computer Misuse Act 1990. It is enough to leave a list of online accounts and ensure this is kept current.”
Law Society president Nicholas Fluck said: “As technology has evolved, so has the way we store information. Simple things such as photographs, which in the past we could have flicked through in a printed album, are now stored online. By making our wishes clear now, it will be easier for loved ones to recover pictures to cherish and will help with the more practical issues such as online bank accounts.”
The Law Society has accredited the first group of law firms to its new Wills and Inheritance Quality Scheme (WIQS).
WIQS is the first recognised quality standard for wills and estate administration in England and Wales.
16 April 2014

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Judge and jury tax powers for HMRC and no right to appeal

As the draft Finance Bill reaches committee stage in the House of Commons today, the Law Society is warning of the threat to people’s right to appeal.
Law Society Tax Law Committee chair Gary Richards said: “The Law Society agrees that HMRC should be able to root out hopeless cases that clog up the system at the expense of the courts, HMRC and – ultimately – British taxpayers. But we are concerned that the government’s proposals to give HMRC more powers come at the expense of individuals’ rights to appeal.
“We have made five recommendations to maintain the balance of power between individual rights and governmental power.”
When a tax avoidance scheme is challenged in court, the tax system currently allows taxpayers to hold on to the disputed tax until the case is resolved. The government is proposing to change that through “accelerated payments” whereby the taxpayer has to pay the money upfront, before a decision has been made on whether the tax is actually due.
The government is also proposing that where other taxpayers have used a similar scheme, if HMRC issues a “Follower Notice” the taxpayer must accept that the judgment made in a completely separate case applies to them, and return the taxes. The government is proposing that if the taxpayer believes the case is not relevant to theirs, they should tell HMRC. However, there is no right of appeal following an HMRC decision to issue a Follower Notice.
Under the proposals, taxpayers will be able to appeal the tax liability (not the Follower Notice), but if they do so can be financially penalised if they lose their appeal.
The Law Society’s five recommendations are:
1. First-tier tribunal rulings should not be allowed to be used as the basis for a Follower Notice. First-tier Tribunal decisions have no precedential value, so it would be unfair for HMRC to order a taxpayer to amend their tax return because of a decision in a case that is non-binding and to which the taxpayer was not a party.
2. There needs to be clearer criteria for what constitutes a “relevant ruling.” The draft legislation gives HMRC broad discretion to determine when a decision is “relevant” to another taxpayer’s case for the purposes of issuing a Follower Notice. If this legislation is to go ahead, it must set clear, specific guidelines for determining whether a decision is relevant or not.
3. There needs to be a right of appeal to an independent body in respect of Follower Notices. The draft legislation does not allow a taxpayer to appeal HMRC’s decision to issue a Follower Notice. All a taxpayer can do is ask HMRC to reconsider. This in effect makes HMRC judge and jury.
4. There should not be an additional penalty for a taxpayer who has received a Follower Notice but chooses to appeal their tax liability. HMRC suggests it would only impose penalties in rare cases to discourage spurious cases being pursued in court – but the legislation does not provide for this. In any case, it is not clear that additional penalties would achieve this objective, while it is entirely possible that they would unfairly discourage cases that ought to be tested in court.
5. The Disclosure of Tax Avoidance Scheme rules (DOTAS) regime is too broad to be used as the sole means of determining whether Accelerated Payment should be ordered, because the fact that arrangements have been notified under the DOTAS regime is not a reliable indicator of avoidance that HMRC wish to challenge.
8 April 2014

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Law Society Tax Law Committee responds to Budget

In response to yesterday’s Budget, Gary Richards, chair of the Law Society Tax Law Committee, said: “The Law Society is disappointed that the Government is insistent on enforcing the changes to LLP salaried member tax rules from 6 April 2014, despite the House of Lords’ report last week which mirrored our own concerns with the proposal and called for any changes to be delayed until next year. There is no evidence that these changes will generate substantial revenue – nor has any explanation been given as to why it is acceptable to place UK LLPs at a disadvantage in comparison to non-UK LLPs or general partnerships, neither of which will be subjected to these new rules.
“The Law Society is concerned by plans to grant HMRC much greater powers to collect taxes “up front” from taxpayers whose cases are under dispute. This would operate where HMRC – not the judiciary – believes their cases sufficiently resemble other taxpayers’ cases resolved in HMRC’s favour. We have previously informed HMRC that we feel these changes in effect threaten taxpayers’ right of appeal, as HMRC could impose penalties if a taxpayer served with such a notice lost his appeal. These changes would come into effect from the date of Royal Assent, and would even be applied to long-standing pre-existing tax disputes.
“We are encouraged by the government’s announcement of plans to increase pension flexibility though much will depend on the detail of the legislation.
“We look forward to being able to contribute to the long-awaited consultation document on the collection of Capital Gains Tax from non-residents disposing of UK property from 2015.”
20 March 2014

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The Law Society welcomes House of Lords report on Mental Capacity Act concerns

The Law Society today welcomed the publication by the House of Lords of a highly critical report on the implementation of the Mental Capacity Act 2005.
The report of the specially convened Scrutiny Committee criticises the controversial Deprivation of Liberty Safeguards regime, commenting that evidence suggests that ‘thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law’.
The Committee concludes that the safeguards are not fit for purpose and that a new statutory framework is needed to prevent further injustices.
Sophy Miles, Chair of the Law Society’s Mental Health and Disability Committee said:
“The Law Society is pleased that the House of Lords has listened to the wealth of evidence it received. We will be looking to the government to implement these important recommendations. Given that the liberty of highly vulnerable people is at stake, this has to be given priority even in times of austerity.”
The Law Society supports the Committee’s key recommendations, especially that people who lack the capacity to make decisions for themselves should get non-means tested legal aid in deprivation of liberty cases.
A full copy of the report can be accessed here:
13 March

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Applications open for Diversity Access Scheme scholarships

Applications are now open for the Law Society scheme for talented students who would not be able to continue their studies to become a solicitor without funding.
The Law Society Diversity Access Scheme (DAS) aims to improve social mobility in the legal profession by supporting promising entrants who also face exceptional social, educational, financial or personal obstacles to qualification. To date, the scheme has helped more than 150 students.
Full and partial scholarships are provided to help individuals undertake the Legal Practice Course. In addition to financial assistance, awardees are also offered access to relevant high quality work experience, a professional mentor and networking opportunities.
Law Society president Nicholas Fluck said:
“The Diversity Access Scheme provides recipients with more than monetary support: it is an investment in the potential of worthy aspiring solicitors who might otherwise have been unable to pursue a legal career. It is a practical and powerful way to tackle social and financial disadvantage.
“In the past, we have awarded scholarships to outstanding recipients who have overcome exceptional obstacles. Previous alumni have experienced time in local authority care, battled homelessness, and fought for access to university and work experience with severe physical disabilities.
“Whatever their obstacles, all have shown tenacity, courage and commitment to furthering their career, and we expect this year’s recipients similarly to add their experiences and talents to the rich fabric of the legal profession.”
About the scheme
The scheme is sponsored by Allen & Overy, Aviva, BP, BPP Law School, Eversheds, Hogan Lovells, Field Fisher Waterhouse, Irwin Mitchell, The Law Society Charity, RBS Group, Reed Smith, Nottingham Law School, University of Plymouth, University of Westminster, and Withers LLP.
Applications for the scheme close at midday on Friday 28 March 2014. For details on applying for the scheme, please visit the website.
10 February 2014

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MEPs reject moves to scrap out of court insolvency

This week the European Parliament voted on new cross-border insolvency rules endorsing the principle of out of court proceedings. Out of court proceedings are globally recognised as effective and rescue-friendly alternatives to formal insolvency proceedings. Amendments had however been introduced that would have deleted such proceedings from the legislation.
Law Society president Nicholas Fluck said:
“We are happy to see that in the end the European Parliament came out for insolvency proceedings that promote the rescue of companies, in particular out of court proceedings as used increasingly in the UK and other EU countries and as advocated by the IMF, World Bank and European Commission.
“A number of other controversial amendments were adopted that could still make rescue proceedings more difficult than is currently the case. We have already raised our concerns about these amendments to the European Commission and will continue our dialogue with all the EU institutions to encourage new EU legislation that genuinely promotes company rescues.”
7 February 2014

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European Parliament proposals block rescue of companies

Law Society of England and Wales president Nicholas Fluck has written to the Vice-President of the European Commission to call for a rejection of the European Parliament’s changes to EU insolvency rules put forward by the Commission to extend cross-border insolvencies to rescue proceedings.
Law Society president Nicholas Fluck said: “The Parliament’s changes fundamentally contradict the objective of rescue. In an economic crisis this is illogical. Rescuing a company rather than liquidating it works to the benefit of both debtors and creditors and it helps safeguard jobs and growth.”
The European Parliament has removed out of court proceedings from the scope of the EU legislation and introduced a so-called three-month ‘look-back’ period that would make companies that exercise their right to free movement subject to the laws of the originating member state.
Nicholas Fluck added: “Excluding out of court proceedings undermines the global efforts by the World Bank, IMF and the European Commission to promote and rescue companies as these types of proceedings are both cheaper and faster than court-driven ones. Keeping a business afloat secures jobs and promotes the interests of creditors. In the UK, where out of court proceedings form a crucial part of insolvency laws, the recovery rate is among the highest in the world, returning 88.6 cents on the dollar to creditors.
“Subjecting companies that operate cross-border to the rules of another member state to where they are based at the time of entering into insolvency proceedings creates a great deal of legal uncertainty by not knowing exactly which country’s laws they fall under. This could prevent them from exercising their right to move cross-border and start rescue proceedings. This kind of a barrier to free movement raises the question of whether this is in line with the treaties.”
In December 2012, the European Commission proposed to revise Regulation 1346/2000 on insolvency proceedings (the insolvency Regulation) to extend its scope to include pre-insolvency proceedings aimed at the rescue of a company.
The Law Society of England & Wales welcomed the Commission proposal as it recognises the growing trend and importance of taking early action to prevent business failure. Extending the Regulation to such processes means that the proceedings will be given automatic and immediate effect across EU which is essential in today’s market where many businesses have cross-border interests.
The European Parliament’s draft report produced by the Legal Affairs Committee is on the Parliament’s plenary agenda for adoption on 4 February 2014. The Legal Affairs Committee made changes to the Commission text that would effectively exclude out of court proceedings from the scope of the Regulation. This would mean that out of court proceedings opened in a Member State in accordance with its national insolvency laws in relation to a company with cross-border operations will not be recognised in other Member States. The result would be that there could be no main proceedings in relation to that debtor under the Regulation, but only territorial proceedings (which would only receive limited recognition in other Member States). To seek recognition without the Regulation, parties would have to fall back on private international law. This would significantly increase legal uncertainty and the costs of proceedings to the disadvantage of both debtor and creditors. It would also undermine any potential efforts to save a corporate in financial difficulties; such matters are highly time-sensitive and potential investors would have long fled by the time disputes over jurisdiction would be solved.
The three-month ‘look-back’ period undermines the existing jurisdiction rule which is that of COMI: Centre of Main Interest. In cases of corporate entities, the presumption is that COMI is where the company is registered. However, this can be rebutted based on the commercial realities of a business and as developed by numerous decision of the Court of Justice of the European Union. It is unclear how the look-back period would apply in practice; as a business wishing to move this degree of legal uncertainty might prevent it from doing so, creating a barrier to the right of movement and of establishment.

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