Rights of vulnerable people in deprivation of liberty hearings

People unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty, the Court of Protection said today.

The Law Society of England and Wales intervened in the case of JM & others to help the Court of Protection in its efforts to find a solution to the lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom.

Law Society of England and Wales president Jonathan Smithers said:

“Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in hospital, a care home or a family home. These cases can be about enforced medical treatment, restraint, limits on people’s movements or on visitors. Many families will understand the challenges of making decisions for a relative who is unable to give their consent.

“When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare.”

In an unprecedented judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered. The judgment was achieved by way of four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.

Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

Law Society president Jonathan Smithers added: “The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.

“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

10 March 2016

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Law Society Financial Benchmarking Survey shows majority of law firms weathered a challenging 12 months

The income of firms polled in the 2016 Law Society Law Management Section (LMS) Financial Benchmarking Survey has increased for a sixth consecutive year, with a median rise last year of 5.4 per cent, despite a challenging year.

The 2016 survey findings are generally positive, with net profit per partner rising for the fifth consecutive year and now standing at £146,600 per partner.

Law Society president Jonathan Smithers commented: “The Law Society welcomes the news of a continuing increase in income for the majority of firms surveyed, particularly after the challenges of the last decade. Our Future of Legal Services report brings together new and existing evidence to identify the key drivers for change over the next five years, together with the opportunities and potential threats. Having good management helps firms financially, which will be important for them to remain sustainable in the face of increased competition.”

One area of concern, however, is that a quarter of participating firms’ partners took more money out of their firms than they made in profits, up from a fifth last year.  For law firms to remain financially sound, it is important that a considerable amount is retained to fund working capital.

LMS chair Robert Banner warned: “The firms that take part in the Law Society Law Management Section Financial Benchmarking Survey usually have a particular interest in high performance and management. If a quarter of these firms are over-drawing then the proportion over-drawing for the rest of the profession is likely to be higher. The resources we offer members support firms to improve management processes across the board, including on this vital issue.”

The Financial Benchmarking Survey also indicates:

  • Increased fee income across most work types and most regions;
  • A rise in the breakeven point for a fee earner, up from £102,000 last year to £109,000 this year, mainly due to increases in fee earner costs and non-salary overheads;
  • That firms have a reasonably good handle on lock up (work in progress and debtors).

Paul McCluskey, Head of Professional Practices at Lloyds Bank Commercial Banking, which sponsors the survey, commented: “The last 12 months continued to offer challenges for many law firms and although the majority of results are encouraging, a key priority for all firms in 2016 will be to effectively manage their cash flow.”

Jon Cartwright of Hazlewoods, which undertakes the survey on behalf of the Law Society Law Management Section added, “There is no doubt that most mainstream legal practices are in good shape financially, and more confident as a result.  Medium term strategy planning is now firmly back on the agenda, although clearly some areas such as personal injury and criminal continue to be tricky.”

The 2016 LMS Financial Benchmarking Survey was based on questionnaires completed by 200 firms from across England & Wales with a combined income of £1bn. The full survey results will be published in March 2016.  The full survey results will be published in March 2016 with participants receiving a free copy of the report including a firm specific findings booklet. Other firms can purchase the report.

Responding to the headline report findings Paul Bennett a professional practice and regulatory partner with Aaron & Partners LLP said firms with excess drawings should: “Take advice now and improve their firm’s drawings position in the short to medium term given that lenders and the SRA are often concerned by financial mismanagement of this type. If it is being addressed the pressures will be much less as we go through 2016/7.”

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Law Society response to SRA statement on regulatory independence

Law Society chief executive Catherine Dixon said:

“We support independent regulation. Regulation is about the minimum regulatory rules which should apply to the whole market to protect consumers. This is very different from professional standards of behaviour, conduct and ethics which should be the responsibility of the profession as they are best placed to raise these standards.

“There is an opportunity to put in place better and simpler regulation which applies to all legal services, as currently many legal services providers are not regulated. This means that purchasers of some legal services are not protected.

“Currently the regulatory maze is complex. There are numerous regulators of legal services and there is an opportunity to consolidate to save cost. There is also confusion because currently there is a very broad definition of regulation which includes regulatory rules, professional standards and conduct, ethics, entry into the profession and awarding the professional title.

“Paradoxically, the most qualified and trained are the most regulated; the least qualified and trained are not regulated. This is a mistake. There is an opportunity to redefine what regulation should cover to ensure that it is simple and better, and applies to all legal services. Regulation should not include professional standards and conduct, nor entry into the profession and awarding a professional title. In order to drive professional standards the responsibility needs to be with the profession. This will ensure that the reputation of the profession at home and internationally is secured and that England and Wales remains the jurisdiction of choice and the legal profession is seen to be independent from Government, enabling it to uphold the rule of law.”

4 February 2016

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Law Society statement on scrapping of criminal courts charge

Law Society president Jonathan Smithers said: “The Law Society has consistently raised grave concerns publicly and directly with government about the threat posed to fair trials by the criminal courts charge. This fee created a perverse incentive on those accused of wrong doing to plead guilty when they were not because they could not afford to pay these often high and disproportionate fines.

“We welcome the decision by the government to scrap the unjust criminal courts charge, which we have lobbied against since its introduction earlier this year. We are pleased that our concerns have been listened too.

“We further welcome the announcement of the review of court-ordered fines and will consult with solicitors to inform our contribution.”

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Law Society will strongly oppose measures to restrict use of in-house advocates

Law Society will strongly oppose measures to restrict use of in-house advocates

Clients should be able to choose which lawyer they want to represent them in court, the Law Society said today.

Responding to a Ministry of Justice (MoJ) review of criminal advocacy, the Law Society said it was strongly opposed to a suggestion that instructing an in-house advocate represents a conflict of interest.

The Law Society emphasised that solicitors have an obligation to act in the best interests of their clients, which means advising on a range of issues, including advocacy options. Many clients choose to instruct a solicitor-advocate to represent them because they know the client and understand their issues and concerns.

Welcoming the opportunity to focus on ensuring the quality of advocacy and that clients have the right to choose the advocate who represents them, Law Society President Jonathan Smithers said: “Restrictions on in-house advocacy by suggesting that a conflict of interest arises, would limit, rather than increase, client choice, and may stop clients from choosing the advocate they would wish to represent them in court. We wholeheartedly support the principle that advocates of the highest quality are available for clients, and this includes solicitor advocates.

“If the Government decides that a conflict of interest exists, this would have profound implications for every decision a solicitor makes on a client’s case which could increase the cost of litigation. ”

The Bar Council has also stated its opposition to restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases.

Highlighting the importance of client choice, the Society expressed concern that the consultation did not address the operation of the “cab rank rule” and the returns policy of the bar, which occurs when a solicitor instructs an external advocate, and the selected advocate becomes unavailable at short notice, so a different advocate is sent to Court, chosen not by the client but by the Clerk to Chambers. This choice may or may not be appropriate, given the nature of the case.

Responding to a proposal for a new statutory ban on referral fees, the Law Society emphasised that it supports the existing regulatory ban on referral fees.

Law Society President Jonathan Smithers commented: “Although we see no need for a statutory ban, we would not oppose its introduction.”

The Law Society supports proportionate measures to enhance and assure quality of advocacy. However, given the imminent launch of the Quality Assurance Scheme for Advocates (QASA), the introduction of a proposed Crown Court panel scheme represents unnecessary duplication. The Society also strongly objects to the suggestion that the number of advocates qualifying for the panel should be limited. The imposition of a panel with restricted membership could expose the State to allegations that it was creating a two tier system.

Law Society President Jonathan Smithers added: “Any restriction purely based on numbers would bear no relation to the quality of the advocates, which is a stated aims of these proposals and would further limit not enhance client choice. “

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Law Society slams personal injury claims limit rise

The Law Society has criticised a government plan to raise the small claims limit for personal injury claims to £5,000 and stop compensation payments for road traffic ‘minor’ soft tissue injuries.

Responding to the proposals Law Society President Jonathan Smithers said:

“The Law Society is gravely concerned that these proposals will completely undermine the right of ordinary citizens to receive full and proper compensation from those that have injured them through negligence. These proposals will stop people obtaining legal advice for all personal injury claims below £5,000 and stop people claiming for often debilitating injuries arising from road traffic accidents if these injuries are considered minor.

“This is a fivefold increase in the present level of cases currently within the small claims procedure, benefiting those who have negligently harmed people and will result in more people trying to work their way through a complex court system without any legal advice. People recovering from their injuries will have to bring claims as litigants in person (without any legal advice) and this can be very unfair because those defending the claims can often afford to pay for legal advice. This therefore undermines ordinary people’s ability to access justice. Especially if defendants simply deny liability forcing people to fight through the courts without legal help.

“Personal injury claims, even lower value claims, can include serious injuries arising from the fault of an employer or other road traffic accidents where legal rights can be very complex and the injuries caused debilitating. A new limit of £5000 will mean personal injuries including facial scarring would be considered as ‘small claims’. This is totally unacceptable.

“These proposals are not, as stated, about stopping fraudulent claims. Fraudulent claims are clearly repellent but they should be dealt with by targeting the fraudsters and not the vast majority of honest claimants who have been injured and bring genuine claims.

“We await the detail of the Government’s proposals. And we will be responding to the consultation robustly.”

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High Court ruling – Judicial Review Challenge

The Honourable Mr Justice Burnett today quashed the Lord Chancellor’s decision on the number of criminal legal aid duty solicitor contracts to be allocated under the Government’s proposals.
Law Society President Andrew Caplen said: “Clearly, it is now for the Lord Chancellor to respond to the High Court ruling.
“I am acutely aware of the potential devastation facing criminal law solicitors and the reducing availability of quality legal advice to vulnerable members of the public. We have no doubt that the Government’s proposals will have a direct impact on the viability of solicitors providing these all-important services to their local communities.
“Under my Presidency, the Law Society will do all in its power to support criminal legal aid solicitors and to defend the rule of law.
“I will engage fully with our members to draw further attention to the plight of criminal law practitioners and the threat to the working of the criminal justice system that has been highlighted by today’s ruling.”

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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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