The Junior Lawyers Division (JLD) of the Law Society has released a response to a consultation by the Ministry of Justice (MoJ) on proposed changes to the way that legal aid fees are calculated. The JLD was highly critical of the proposed changes, saying that the move seemed to have been designed to “reduce the potential for junior lawyers to earn a living.”
The MoJ consultation paper contains an impact assessment which estimates a 10% increase in spending on fees for self-employed QCs as a result of the changes. In contrast, legal aid fees for junior barristers and solicitor advocates, especially at the junior end, would be cut. In its response, the JLD said it was “extremely concerned” by the fact that the fee increase for QCs came at the expense of those in the early stages of pursuing a career in criminal advocacy.
The MoJ has described the proposed restructure of the Advocates Graduated Fee Scheme (AGFS) as a “more sophisticated system.” It would replace the current calculation system based on pages of evidence, except in some cases such as drug matters, with a calculation based on the amount of work generally involved in dealing with the offence in question. There would also be “unbundled” elements, where specific aspects of the case would carry their own fixed fees.
In its response to the MoJ consultation, the JLD criticised the proposed AGFS restructure for its impact on junior members of the legal profession. Specifically, the response accused the restructure of providing a favourable shift in fees to more senior professionals at the expense of those who were not so far advanced in their careers. In this, the JLD echoed the opinions of the Law Society as a whole. Previously, the Society said that the proposals would effectively cut the fees of solicitor advocates and, especially, junior solicitors and barristers in order to fund a pay rise for QCs.
The response also suggested that those who come from lower-income backgrounds would also be affected if they decided to pursue a specialism in criminal law, with that option becoming “simply… not financially viable” for many. The JLD went on to say that it “would not wish for there to be a position where only those with sufficient independent means can afford to work as a criminal advocate.” When these proposals are added to previous changes as a result of legal aid cuts, the JLD said, they left “no incentive” or junior members of the legal profession to enter criminal law.
The Bar Council said in its own response the the consultation that it largely supported the proposals. It did, however, call for the situation to be “closely monitored” to avoid potential negative impact on advocates.
The government has decided to loosen restrictions on the evidence used in domestic violence cases, which will make it significantly easier for many victims to claim legal aid. In a move that has been welcomed by many legal professionals and campaigners, the decision has been made to lift time limits and expand the scope of what is considered acceptable evidence.
The government has been criticised over the restrictions on evidence in private family cases, and particularly domestic violence cases, for some time. Victims must provide suitable evidence when making their application for legal aid, and criticisms have centred around restrictions on the evidence that this can be. There are limitations on what types of evidence can be considered valid, and even the kinds of evidence which are prescribed under the current system are subject to time limits. This, campaigners say, has made it difficult for many victims of domestic abuse to access financial assistance that they might depend on in order to afford professional legal counsel.
Estelle de Boulay, director of Rights of women, said: “The current rules are so restrictive that they fail to assist a large number of victims – the majority of whom are women. Our evidence showed that up to 40% of women could not meet the requirements.”
The current system with all its restrictions was introduced in 2013. Previously, there was a time limit of two years on some kinds of evidence used when applying for legal aid in such cases. Later, in 2016, this was expanded to five years after a Court of Appeal ruling. However, abusers can often remain a threat to their victims for a number of years or even for life, leading many to feel that the five year limit was still far too short when the evidence might become pertinent after a much longer period.
Following a review by the Ministry of Justice, it has now been confirmed that the time limit on evidence will be lifted altogether. This is being hailed as a victory by campaigners and by Chancery Lane, who opposed the restrictions that the current system places on victims applying for legal aid. Furthermore, the Ministry has confirmed that it will broaden the categories of evidence that are considered acceptable in legal aid applications, further easing the process for victims of domestic violence.
Following a separate line of research into domestic violence cases, the Ministry of Justice has also announced that it will take steps to end the practice of vulnerable witnesses being cross examined by their alleged abusers in cases of domestic violence. This has become a growing problem since legal aid cuts have increased the number of people acting as litigants in person, and attempts to ease the process such as separating alleged perpetrators and victims with screens have been criticised as inadequate.
Michael Gove has been replaced as Justice Secretary by Liz Truss, formerly of the Department for Environment, Food and Rural Affairs (DEFRA). The replacement of Gove was part of the cabinet reshuffle carried out by Theresa May after assuming her new role as leader of the Conservative Party and therefore Prime Minister of the UK.
As well as DEFRA, Truss has worked in accountancy for Cable & Wireless and Shell after graduating from the University of Oxford with a degree in Politics, Philosophy and Economics. While at Oxford she was a Liberal Democrat, but later moved over to the Tories. She spent one year as part of the Justice Select Committee before she became a Conservative minister. Beyond her year on this committee, Truss does not have a legal background. This makes her the third such person to assume the role of Justice Secretary.
Her predecessor, Michael Gove, had spent 16 months in the role. Following a highly controversial spell as Secretary of State for Education which won him few friends in the industry, he went on to attract a fair amount of goodwill as Justice Secretary. Much of this, however, was generated by his willingness to roll back the unpopular measures of his predecessor Chris Grayling.
After her appointment as Gove’s replacement, Liz Truss said through her Twitter account that she was “delighted” and “looking forward to getting stuck in.” Truss previously worked with Gove as part of his Department of Education. It has been said that she has expressed disappointment with Gove’s reluctance to listen to her input or act on her recommendations during that time.
It is difficult to predict the direction that Truss will take in her role as Secretary of State for Justice. With her lack of specific legal background and limited involvement in such matters in the past, little evidence of her opinions on major legal issues has appeared to the public.
Her voting history, however, does suggest some points that may prove contentious with the legal industry. For example, it is known that she has consistently voted in favour of legal aid cuts – one of the most controversial and consistently-opposed bodies of legal reform in recent years. Furthermore, she has previously spoken out in parliament about the cost of the UK’s justice system, calling it the “most expensive criminal justice system in the world” with plenty of room for potential “savings.”
Regarding specific areas of the law, Truss’ opinions are similarly unknown. She has, however, been seeking reforms to employment regulation.
New and sensitive support measures for the mental health of solicitors have been announced. The Solicitors Regulation Authority (SRA) has announced better support for the wellbeing of solicitors, who work in one of the most stressful and demanding of professions.
The SRA says that its new initiative, “Your Health, Your Career,” will “[highlight] the importance of managing the risks of ill-health early to stop problems spiralling out of control.” If solicitors become worried about the state of their health or the way in which it may be affecting “their role or business,” they will be able to contact the SRA and access a package of support measures. These include a website, a “one-stop-shop” solution designed to provide help on-site and point solicitors towards other sources of appropriate support. “Practical, helpful” advice and support will also be available from the professional ethics team of the SRA. Furthermore, a commitment will be made to promote understanding between individuals in legal practice and accommodation of their needs, including “sensitively” handling communications and negotiating extensions to deadlines when this is possible.
Both individuals and firms, the SRA said, would benefit from access to “tailored, sensitive support” when under investigation by the regulator. Paul Philip, chief executive of the SRA, said that the aim was to ensure anyone who “finds themselves” the subject of an investigation would be dealing with an “understanding and sensitive” regulator.
Philip said: “The number of solicitors we investigate is, of course, very small, but we know just how stressful it can be and all the more so if someone is unwell.”
The announcement of this initiative was timed to take place within Mental Health Awareness Week, which began on the 16th of May and lasts until the 22nd. Mental Health Awareness Week is an initiative from the Mental Health Foundation, and aims to promote awareness not just of mental health issues but of the needs of those who struggle with them.
Outlining the need for the initiative, Paul Philip said: “Solicitors have responsible and challenging roles, often in high-pressure environments. That can take its toll on health and wellbeing, which can have a real impact at work.”
Philip went on to say that “As the regulator, we want to make sure solicitors are properly supported to do the best job they can. That means making it as easy as possible for people to let us know if things are getting difficult, and to find the right support at the right time”
Last week, a debate was held in the House of Lords on matters of prison reform. According to Lord Fowler, the peer who launched these discussions, the debate served to “[show] how much goodwill there is for the new justice secretary” Michael Gove (pictured right).
Gove was appointed Justice Secretary in May last year following his party’s victory in the general election, and was also appointed to the post of Lord Chancellor. His appointment was not without controversy, and neither was his time in his previous post as Education Secretary. However, according to Fowler – a backbench peer and Gove’s fellow Conservative – the recent House of Lords discussion generated a considerable amount of optimism about Gove’s policies. The policies introduced so far, Fowler said, “give more hope for advance in prison policy than anything I have heard for many years.”
These sentiments were not confined to Gove’s fellow Conservatives. Lord Beecham, a Labour front bencher, said that “It would be churlish not to welcome Mr Gove’s appointment as Lord Chancellor.” Beecham did, however, go on to point out that, in his opinion, “almost anyone would have been an improvement on his predecessor.”
The predecessor in question was Chris Grayling, who preceded Gove in both the Justice Secretary and Lord Chancellor posts and generated a lot of controversy and criticism. Grayling held these two roles from September 2012 until Gove’s appointment following the general election last May, and was the first Justice Secretary without a background as a lawyer for more than 400 years. Grayling proposed highly unpopular reforms to human rights legislation, which were ultimately never implemented. He was also given the unfortunate task of cutting budgets in the Ministry of Justice, and his decision to achieve a large part of this by slashing the budget for and public access to legal aid continues to generate huge amounts of controversy.
Indeed, Gove’s reversal a number of Grayling’s least popular – and, in the eyes of many, least successful – has been a major factor in attracting praise from members of other parties. Rumours suggest that he may continue to do so in the near future by abandoning controversial elements of the award process for criminal legal aid duty contracts.
However, despite the amount of “goodwill” generated by the most recent House of Lords discussion and a general willingness to reverse unpopular decisions of his predecessors, praise for Gove is not universal. Most recently, he has been criticised for the continued detention of 4,500 individuals. These individuals were given imprisonment for public protection (IPP) terms of indefinite length under provisions that were abandoned in 2012.
The law, be it contract law, criminal justice, or medical, and everything in between, is always beset by a lingering degree of ambiguity. Although such ambiguity is necessary to allow legal rules to adapt and develop, it is very welcome when a verdict is handed down that clarifies and defines an area or issue of law.
One such example was a personal injury case before the High Court this May- Vaughan v MoD  EWHC 1404 (QB). The case had been brought by Spencer Vaughan, 27, of the Royal Marines, against the Ministry of Defence (MoD).
In 2010, Marine Vaughan had taken part in a sailing expedition with the Marines around the Canaries. On the last day of the sailing expedition, there being little wind, the experienced skipper of the boat postponed their departure from the marina at Puerto Mogan in Gran Canaria. Expecting the wind to pick up later that day, the skipper told the Marines on board that they had free time until that afternoon. Mne Vaughan and his five comrades went to the beach at Puerto Mogan for the morning. Whilst at the beach, Mne Vaughan, waist deep in water, attempted a dive into the sea. Whilst doing so, he struck his head against a sandbank concealed under the water, and ultimately sustained “a fracture of his cervical spine.”
Mne Vaughan subsequently initiated legal proceedings against the Royal Marines. He claimed that he suffered his injury as a result of a breach of the duty of care that the MoD had towards him. His lawyers argued that the MoD owed Mne Vaughan the same duty of care as any (civilian) employer would. The case ended up in the High Court, where in May Mr Justice William Davis ruled on the very issue of the liability of the MoD in this case.
The key matter here, according to Judge Davis, was did the Royal Marines and MoD owe the Marine a duty of care for an adventurous training expedition, and a similar duty of care for the incident at Puerto de Mogan beach that caused his accident? After all, the Marines had clearly been told that their time was their own that morning despite still very much being under the authority and control of a formal military expedition. What also needed to be considered was that such adventurous training, although not mandated, is considered an important part of military training and development. As such, it could easily be argued (as Mne Vaughan did indeed argue) that he was still ‘on duty’ and ‘under training’ at the time. In that case, Mne Vaughan would be covered by employer’s liability for his accident (at work?).
In his verdict, after considering just this point regarding such injury at work claims, and the employer/employee relationship, the judge was careful to unpick the obligations owed to employees when not working for their employer. Unsurprisingly, there was none. Although it is evident that the MoD does indeed owe its employees the same duty of care and obligations as any civilian employer (saving the exceptions granted the MoD under combat immunity), it was uncertain whether those rules applied in this particular incident, as the Marines were not ‘working’ for the MoD at the time of the accident, despite very much being under military authority and chain of command in the expedition. The key phrase and issue was whether the Marine, in his adventurous training expedition, was performing duties “reasonably incidental to his work.” Mr Justice Davis found that this was not the case, and as such, the claim failed.
Vaughan v MoD adds to the canon of personal injury case law. Although not ground breaking, it is useful for the personal injury lawyer. Once again, the obligations, duty and liability of an employer to an employee are clearly set out, as is the legal duty of an employer to an employee, in all ways, whilst that employee is “in the execution of their duties.”
What is useful is that there is clarity to the on duty/off duty nature of employment, and the incidents and accidents that can occur in that ‘grey area.’ Quite often employees will be not necessarily working for an employer, but still be acting in association with them – for example, a work event, networking event, training, team building, etc. Vaughan v MoD is useful as it helps to clarify the definition and legal boundaries between on duty an off duty.
No doubt the phrase “reasonably incidental to their work” will enter the lexicon of the personal injury lawyer subsequently.
According to a legal financial adviser specialising in the legal sector, many solicitor firms are “in denial” about the scale of competition they face from accountancy practices, and are failing to appreciate the level of threat this poses. Solicitors Independent Financial Advice chairman Ian Muirhead warns that solicitors will soon be facing direct competition from accountants “on every high street in the country.”
The Institute of Chartered Accountants in England and Wales (ICAEW) successfully became an approved regulator of ABS licenses last year. This followed two years of efforts on the part of the organisation to obtain approved regulator status. It has given ABS accreditation to 113 firms since October, and is currently processing a further 34 applications. Upon its approval, the ICAEW predicted that around 250 firms would apply for ABS licenses, but Muirhead believes the actual figure could be three times this estimate.
Muirhead, who was speaking at a Westminster Legal Policy Forum, said that there were many solicitors “in denial” about the threat that could be posed by accountants moving into probate work. So far, he claimed, the response of many legal practices has been based on mergers, acquisitions and consolidations an approach he described as a response of “safety in numbers, more of the same, not thinking outside the legal silo.” Such tactics, he believe, could ultimately work in favour of the firms’ newfound competition instead of helping to mitigate the threat. It left legal firms “missing the opportunity of which many new ABSs are availing themselves, of providing a more diversified and holistic client service.”
“Success,” he said, “will go to those who can manage businesses and I query whether that’s going to be the solicitors or whether solicitors are going to be the back-room boys.”
He also suggested that law firms were taking the wrong approach in the amount of money they are spending on attracting new clients. They would be better off, he claimed, investing in maintaining and improving their relationships with current clients and keeping contact with them in order to reduce the risk of losing existing probate work to accountants. This approach should, he said, be combined with an effort to work alongside other firms providing different but complementary services in order to offer their clients a greater degree of choice and a more comprehensive package. Such services could include accountancy, estate agency services and surveying.
The schedule for the roll-out of Wi-Fi in courtrooms has been accelerated by the Ministry of Justice. The plans have been brought forward to facilitate the ministry’s intention to bring about fully digital courtrooms by 2016.
The plans will see Wi-Fi rolled out across the country throughout all courts in England and Wales, including both Crown courts and magistrates’ courts. According to the Ministry, announcing its change of plans today, wireless internet access will become available in every court in the country by October of this year.
Originally, the target date for the complete in-court Wi-Fi rollout was March 2016. In order to be in a better position to digitise English and Welsh courts by next year, however, the decision was made to accelerate plans and bring the target date forward by five months.
The plans to provide wireless internet access in the courtrooms of England and Wales were originally announced in April of last year. They formed part of a scheme to bring the British justice system into the “Wi-Fi era,” according to justice minister at the time Damian Green. This represented a fairly large-scale scheme with initiatives worth a total of £75 million.
It had previously been reported that the target date could slip back in some areas. Courts in Devon were at one point told that they could not expect to benefit from the installation of Wi-Fi until at least 2017 and possibly later. The decision to complete the rollout of Wi-Fi in all English and Welsh courtrooms this year, and within five months, has therefore been received with an element of surprise in some quarters.
The plan is that courts will not only have Wi-Fi available but will become fully wireless. The intention is for all devices and users to connect to the Wi-Fi network rather than using the wired systems that are currently in place.
According to the Ministry of Justice, the recent revision of the target date will do a great deal to facilitate the government’s plans for fully digital courtrooms. With the new, faster timetable for Wi-Fi installation, the Ministry says it is “in a good position” to bring about its digitisation plans by July of next year.
Fully-digital courtrooms will allow defendants to appear in court remotely for pre-trial hearings, via video links connecting courtrooms and prisons. Cases could be presented by both the defence and the prosecution using mobile phones, and submissions can be stored centrally and accessed wirelessly by all relevant parties.
Amidst reforms to the legal sector (such as LASPO), and measures designed to make the legal sector more cost effective and competitive, 2012 saw the introduction of Alternative Business Structures (ABS). Amidst opening up the legal sector more, and shaking up the traditional legal firms, such companies were also supposed to enable more people to get access to legal services and advise.
Essentially, ABS are legal service providers not run by lawyers. The company is fully regulated and registered by the Law Society to provide legal services and advice, but has some non-legal management structure. That non lawyer involvement or management can take any form- but usually consists of another company not working in the legal sector having a law branch, or setting up a subsidiary legal company. Such firms have to be regulated, and operate under the Law Society’s rules and codes of practice.
When the first ABS licences were granted in 2012, many companies got on board, and either entered the legal sector, or set out plans to. Cooperative’s existing legal division took advantage, and under the ABS rules became Cooperative Legal Services, one of the first of the new businesses. Eddie Stobart (trucks and logistics) formed Stobart Barristers chambers. Professional service provider Parabis expanded, moving from insurance, finance and travel into legal services as well. Several new or existing law firms restructured their businesses, becoming an ABS to bring in non-lawyer management.
Many had misgivings about the scheme, criticising ABS as ‘Tesco law’, and questioning the quality of legal services provided by the new companies- many of which had never operated in the legal sector previously. Indeed, Lord Neuberger (the President of the Supreme Court), said in 2013 that the rise of ABS needed rules in place to stop the risk of the “unyielding tentacles of self-interest,” and that the opening up and liberalisation of the legal services market must not result in a “free-for-all”.
The ABS’s rebutted their critics with equal fervour, and have worked in the background the last few years, getting established in the legal sector. Law students (future lawyers) were uncertain as to the new potential employers, and reception was tepid at best in the law school campuses and careers services. However, critics and supporters both agreed that ABS were a fundamental change to the legal sector- and a change that was here to stay.
2015 marks three years since ABS were introduced- with mixed success and acceptance so far. Further to that, 2015 saw a report released on ABS by Jasminka Kalajdzic, Associate Professor at the University of Windsor in Ontario in Canada. Essentially, the report found that there was no data to indicate that access to justice had fundamentally increased.
Professor Kalajdzic found that Australian and British ABS had seen successes in areas such as branding (or rebranding), utilising new technologies (such as online systems) and in achieving economies of scale. One point of note was that the business models of ABS had resulted in an increasing number of personal injury claims being seen. However, there was no ’empirical evidence’ that the new business structures had resulted in a reduction in the costs of legal services, or much alteration in the rate of self-representation.
Whatever financial benefits of- and economies of scale that were derived from- ABS were mostly seen in areas of legal practice that could become a commodity-such as personal injury. Areas of law that required a more personal touch, or individual attention (such as family and employment law), still seemingly needed the existing support and structure provided by a traditional law firm, and as such were less prominent services for ABS.
Another issue considered was access to justice. Supporters of ABS state that the new structure can increase access to justice, especially for those who cannot afford legal representation. In her study, Professor Kalajdzic found that there was no evidence of such a significant impact on areas relating to civil justice (such as family, employment, debt and consumer legal issues); however, those civil justice concerns are the most significant legal concerns in Ontario.
The report was compiled amidst an interest in the ABS structure following recommendations in 2012 looking into the legal market in Ontario, the most populous province in Canada, and home to both the national capital Ottawa, and legal and financial hub Toronto. The proposal considered was to allow non-law firms to be able to offer legal services, or indeed to wholly or partly own law firms. Other similar but moderated proposals were also put forward.
Whether the Ontario provincial government will adopt such measures remains to be seen. This side of the Atlantic, the report just serves to confirm what critics knew all along; that non law companies offering legal services was never going to be an effective method of practicing law, and neither would it impact on the availability and access to justice. Overall, the Canadian report does nothing to assist the already tarnished reputation of ABS.