Weekly Notes: legal news from ICLR – 5 September 2014
Posted on 5th Sep 2014 in Weekly Notes
This week’s roundup of recent law stories from home and abroad looks at legal regulation, deregulation and amateurisation; at investigation of abuse and abuse of investigation; and at attempts to prosecute economic crime and prevent gay marriage.
Other recent posts of interest (from the new Transparency Project blog):
- Open justice and access to law: why BAILII deserves our support by Paul Magrath
- Ashya King by Lucy Reed
Regulating legal services: is quality, quantity or cost being prioritised?
The regime brought in by successive Legal Services Acts has been aimed at liberalising legal services, but has this actually benefited the public? In a week when a flagship ABS appears to have capsized while the uber-regulator, LSB, endorses the idea of allowing unregulated and unqualified fee-charging lay advisers to appear in the civil courts, one does have to ask.
The number of regulators has proliferated, as have new ways of delivering services, and yet the administration of justice has never been under greater strain. Do we have the legal professions needed to deal with the way law and justice are now provided, following a succession of attempts to modernise and adapt the legal professions while vigorously slashing public spending in the legal system?
The buzzwords in the Ministry are “transforming” and “reshaping”. Typical of the process were the MOJ papers, “Transforming Legal Aid” and “Transforming the Criminal Justice System”. The question many asked afterwards was, yes it’s been transformed, but who is it aiding, and is it still justice?
In the wake of changes brought in by LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and other developments, you get the impression the courts are now clogged up with litigants in person, whose cases take twice as long to resolve without the aid of professional advisers. Criminal trails are being cancelled or postponed because prosecutors can’t get evidence lodged in time, courts can’t get interpreters, and those charged with serious offences can’t get appropriate representation. Anyone actually convicted finds the prisons understaffed and overstretched, and probation services partly privatised and wholly demoralised. Civil claims are being frustrated by procedural hurdles and “Mitchellisation”.
Was it all really broken before they fixed it? No doubt in some ways it was. But the question is whether they really have fixed it, or just “transformed” it. They are not the same thing.
Take regulation.The Legal Services Act 2007 created an uber-regulator or “oversight body”, the Legal Services Board, with power to approve regulators for various types of legal activity. There are currently something like eight individual regulators, including the Law Society, Bar Council, Master of the Faculties, Chartered Institute of Legal Executives, Council for Licensed Conveyancers, Chartered Institute of Patent Attorneys, Institute of Trade Mark Attorneys and the Association of Law Costs Draftsmen.
In a drive to separate regulatory and disciplinary functions from professional promition, these in turn have created or hived off further bodies, such as the Bar Standards Board (BSB) and the Solicitors Regulation Authority (SRA), thereby adding to the bewildering array of acronyms. In turn, these have got together to create cross-professional regimes such as the hitherto unimplemented Quality Assurance Scheme for Advocates (QASA), which was mired in controversy, bogged down by boycotts, and stalled by judicial review proceedings.
McKenzie frenzy (contd)
The Act provided for the LSB to include a Legal Services Consumer Panel (LSCP). In a report published in April this year, the LSCP recommended that professional McKenzie Friends should get their own trade association and be recognised as “a legitimate part of the legal services market” but that they should not require to be regulated. This week, that recommendation was endorsed by the LSB, with a statement by the chairman, Sir Michael Pitt, to the effect that litigants should have access to “competent and affordable support at the time they need it”.
Given that McKenzie Friends are not professionally trained (except for the ones who are but for some reason do not or cannot practice) and will not be regulated, this seems like a triumph of hope over certainly some people’s experience. It also seems to fly in the face of the idea that all the legal professions should be regulated to bits, with LSB cracking the whip over the various individual regulators, with certified quality assurance in all areas, while the one sector of providers who are not actually professionally trained, or regulated, or certified, will be free to advise outside court and to practice in court subject only to the discretion of the judge.
An alternative to success
The Act also provided for the creation of Alternative Business Structures (ABS) to provide legal services, something quickly dubbed “Tesco law” but more typically realised by the launch in 2009 of Co-op Legal Services with a great fanfare and promise to create many jobs.
Just this week, Legal Business reported that the Co-operative Group’s bid to conquer high street legal provision, has gone from bad to worse, making a loss of £5.1m in the half-year to July 2014. The flagship ABS, having made losses of £3m over the same period last year, and even more this year, seems to have capsized. Interestingly, management have put part of the blame for the poor performance on “regulatory change and legal reforms”. Full report: Legal Business.
Back to square one
Meanwhile, as reported on Marylin Stowe’s blog, the Law Society has responded to the crisis in advice and representation with a new campaign urging the public to “Use a Professional; Use a solicitor”. In other words, forget all this dergulation, liberalisation, alternative structures and amateur provision, and just go for the good old-fashioned possibly slightly dull traditional high street solicitor and get copper-bottomed reliable advice from people who know what they’re talking about.
President of the LS, Andrew Caplen put it somewhat mildly:
“The growth of unregulated and do-it-yourself legal services means consumers are exposed to nonprofessional advice, which can be more of a hindrance than a help.”
In other words, for all the ambitions of the transformers, it’s back to good old square one.
UPDATE: On Access to Justice: Gazette, Law Society launches campaign
On ABS woes: Gazette, Cocky Co-op has to lick its wounds
On Litigants in Person: The Times (£), Rise of the DIY litigant forces judges to rewrite court rules
Prosecuting economic crime
New AG sets out his stall
The replacement Attorney General, Jeremy Wright QC MP, in his first major speech in the job, told the Cambridge International Symposium on Economic Crime of his plans to create a new offence of “corporate failure to report economic crime” akin to the offence under section 7 of the Bribery Act 2010. This means that it would be both strict liability and create vicarious liability, something widely objected to in the 2010 Act. But Wright also proposes a “national anti-corruption plan”. This is said to reflect embarrassment in the Westminster village over successive failures to punish anyone over recent banking and financial services scandals, such as the LIBOR-fix scam, to any effective extent.
Read the AG’s speech, entitled: “Shield, Sword and Achilles Heel in the fight against economic crime”
News story: Independent
Investigation of abuse
Yet another inquiry
Fallout from the recent Rotherham child exploitation scandal continues as South Yorkshire police announce a “fully independent investigation” (according to the Guardian)
This follows resignation or suspension of several senior officials of Rotherham council, all Labour members. However, Shaun Wright, South Yorkshire’s police and crime commissioner has steadfastly refused to step down, though he did divest himself of his Labour party membership without too much fuss.
Before that story broke (or finally broke out into mainstream coverage), we had the independent inquiry set up by the Home Office earlier in the summer, into historic child abuse. That stalled initially because of a question as to the suitability, to chair the inquiry, of Baroness Butler-Sloss, since she was related to the late Sir Michael Havers who had served as Attorney General during the relevant period, and there was a risk of apparent (though obviously not actual) bias. (See Weekly Notes – 11 July.) Albeit slightly reluctantly, Baroness Butler-Sloss, who in other respects had relevant experience and skills (she had chaired the Cleveland Child Abuse Inquiry in 1987) stepped down, leaving a gap in the Home Secretary’s plans.
For a detailed critique of this, see Matthew Scott, on Barrister Blogger: Theresa May’s Politically Driven Inquiry Into Child Sexual Abuse Is Heading For Disaster
UPDATE: Daily Mail alleges potential conflict of interest owing to Fiona Woolf’s connections to Leon Brittan, a relevant former cabinet minister:
Meanwhile, in parallel with all this, DB Family law reports on a recent consultation paper from the Children and Vulnerable Witness Working Group (31 July 2014) under the auspices of Sir James Munby, President of the Family Division.
And now DB has written an Open Letter to Fional Woolf on bias
Abuse of investigatory powers
The report by the Metropolitan Police into the so-called “Plebgate” scandal (over whether police officers conspired to accuse Andrew Mitchell MP not only of swearing at a police officer guarding the gates of Downing Street (which he admitted) but also of calling one of the officers a “pleb”) reveals that the force arrested an officer on suspicion of leaking information to the Sun newspaper after an analysis of the phone records of Tom Newton Dunn, the Sun’s political editor. From this, it transpires that the police must have obtained Mr Dunn’s telephone records without his consent, despite laws which entitle journalists to keep their sources confidential.
The Sun confirmed that neither Newton Dunn nor the paper knew anything about the intervention of the police, until the report was published on Monday. They have concluded that the police obtained the records from phone companies.
But, as David Allen Green explains in his FT blog, RIPA requests, Plebgate, and journalistic sources, they also did this without any warrant or other court order.
RIPA stands for the Regulation of Investigatory Powers Act 2000, one of those pieces of legislation brought into effect in a frenzy of concern over terrorism, and then used (and abused) for all sorts of mundane snooping and evidence gathering processes, without the need for tiresome scrutiny or court orders. As David Allen Green explains:
What the Metropolitan Police appear to have done was to issue a “RIPA request” to Mr Newton Dunn’s mobile telephone company for “telecommunications data”. This is not the same as obtaining “intercept” evidence of live calls and voicemails – that would need a warrant.
Instead, all they needed was a senior “authorisation” from a police officer in the same force.
And such requests have become so commonplace, so routine, that this one would barely have registered a flicker of concern, even though it applied to the political editor of a national newspaper, a noisy one at that; because this was just one of some half a million such requests made and granted each year.
But though they may not see it that way, to anyone concerned about independent investigative journalism and the need to protect sources, this appears to be a dangerous abuse of an illiberal enactment.
- Guardian, Plebgate: Met obtained phone records of Sun political editor without consent
- Open Rights Group: Tom Newton Dunn is one in half a million
US court rejects gay-marriage bans
But cases still await decision of US Supreme Court
In a judgment given by Judge Richard Posner, the Seventh US Circuit Court of Appeals, in Chicago, has unanimously ruled against same-sex marriage bans imposed in two states, Wisconsin and Indiana, because they violated the US Constitution’s guarantee of “equal protection under the law”.
Posner, who is apparently quite outspoken, said the arguments advanced by both states in defense of the bans were “totally implausible”. He added:
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Both states have vowed to appeal the ruling. However, two other federal appeals courts have ruled the same way, striking down bans in Virginia, Utah and Oklahoma. The issue is expected to appear the US Supreme Court before too long.
Full story: Reuters
More on this: The Atlantic
That’s as much as we’ve got this week. To round it off, here’s a typically funny slant on the world of legal traineeship, from the Queen’s Counsel cartoon in The Times, courtesy of Alex Williams.
Have a great weekend!