Sunday Law Review: the week that was 4th to 10th March.

March started on a sombre note with news of the tragic death of Glasgow based human rights barrister Paul McBride QC. McBride was on a business trip to Lahore, Pakistan and died in his hotel room of natural causes. This column joins the legal fraternity in paying tribute to the work of Paul McBride.

The government is considering a major a overhaul of rules governing employment tribunals. Justice Minister Jonathan Djanogly has claimed that the present system weighs heavily on the public purse. Proposals include a fee to be paid by those bringing a case to tribunal, claiming anything from unfair dismissal to sexual discrimination. The Trade Union Congress (TUC) has described the plan as ‘chequebook justice’ and fears that the new proposals could be seized upon by unscrupulous employers to ‘discriminate at will’.

Barristers and solicitors are once again at loggerheads over the Quality Assurance Scheme for Advocates (QASA) for criminal law specialists. Solicitor bodies are fearful that the use of judicial evaluation in the new scheme to assess the quality of advocates could be unfairly biased towards barristers. The scheme is being designed by a group representing barristers, solicitors and legal executives, and advocates would be assessed against a common set of standards at four levels of experience. Those seeking accreditation to the two higher levels would be required to have their performance assessed by members of the judiciary. The Solicitors Regulation Authority (SRA) has proposed that the scheme should be amended so that plea-only advocates can do non-trial work at the higher levels without being judicially assessed. The Bar Standards Board (BSB), in response has suggested a two year skills development period, which would include experience in the field of conducting trials, leading to access within the full framework of the scheme. The Law Society states that the ‘overwhelming majority of advocacy work is carried out by its members’. This being the case, the SRA feels that judicial assessment within the scheme ‘should not be used as a device to exclude the demonstrably competent simply because their pattern of practice does not include trial work’. The BSB maintains that judicial evaluation is an essential guarantee for the consumer.

Government proposals contained in the draft defamation bill would require the libel claimants to demonstrate ‘serious harm’ before the case can proceed. This is an alternative to the original requirement of proving ‘serious and substantial harm’. It was felt that a combination of ‘serious’ and ‘substantial’ could cause uncertainty and litigation over possible difference between the terms. In another major change, the common law Reynolds defence of responsible journalism in the public interest would be abolished. The replacement is the statutory defence that the publisher has acted responsibly on matters of public interest. The government agreed with the general view that the new law should set a list of clear factors determining whether a publisher has acted responsibly, however, in denying the possibility of extending the number of factors, particularly, in relation to the resources of the defendant, smaller publishers and organisations could remain unprotected. The government also turned down a request to include a requirement that the publication should be read as a whole, known as ‘statement in context’, rather than focusing primarily on the words complained of.

The Queen’s speech on 9th May is expected to propose extending closed trials beyond terrorism to include civil cases involving inquests, prisons, the police and organised crime. Kenneth Clarke, the Justice Secretary has defended the ‘closed material procedures’, which would allow ministers to defend themselves against damage claims by disclosing sensitive evidence without endangering the national interest or exposing vulnerable sources. Critics of the plans have argued that closed trials would lack transparency, are unfair and serve to build a body of secret case law only accessible to the government and intelligence agencies. The justice and security green paper is aimed at closing down embarrassing public actions brought against the intelligence agencies by former terrorist suspects such as Binyam Mohamed, a British citizen held in Guantánamo Bay, who claimed to have been  tortured while being detained.

The Home Office has announced ‘Clare’s Law’ as a pilot domestic violence disclosure scheme borne out of the campaign by Michael Brown, whose daughter Clare Wood had been brutally murdered by a man who had a record of violent offences. The disclosure scheme would allow individuals the right to ask about a partner's previous convictions. The Home Secretary Theresa May stated that the alarming statistic of two people being killed by their current or former partners each week in England and Wales justifies need for such a scheme. The charity Refuge has worked on a number of high-profile cases where basic police failings have been shown to have contributed to the death of a woman. Refuge has criticised the need for more bureaucratic schemes citing that in the past police had consistently failed to perform the most basic duties towards victims of domestic violence.

A survey commissioned by the Law Society and LexisNexis UK on the eve of International Women’s Day  revealed that gender diversity is still an important commercial issue for law firms. Flexible working was cited as the most influential change that firms could make to allow for more female lawyers to reach positions of seniority. The traditional networking routes to promotion also seem to display an unconscious bias within the profession. Susan Belgrave, an employment barrister appears more positive on diversity. Writing in ‘The Lawyer’, she states, ‘The bar has evolved from the frosty reception that issues of diversity first received to an open embrace that seems genuine in its attempts at inclusiveness, even if sometimes slow in execution’.

The economic downturn has led to a decrease in training contracts and pupillages for students and graduates. The Bar Standards Board is in consultation process for introducing an aptitude test for prospective bar students. The Law Society has criticised the move by arguing that while a test might support the stated aims of improving student experience and raising standards on entry to and exit from the Bar professional training course (BPTC), this appears to provide minor benefits from an expensive additional hurdle, as there is a definite mismatch between students passing the BPTC and available pupillages.

Rank                Name of Firm
19                    LewisSilkin - London
23                    Mishcon de Reya - London
70                    Baker & McKenzie - London
77                    Withers - London
88                    ReedSmith - London
90                    Mills & Reeve - London

In the small company league table, the sole legal representative is DBS Law from Birmingham, coming in at a creditable number 59.

The Chief Legal Ombudsman Adam Sampson has stated in a revealing Guardian Law article that ‘for too long, lawyers have got away with arcane pricing and billing practices’. The arrival of commercial giants such as the Co-op and the prospect of legal services being offered by banks and insurers, law firms capable of adapting their traditional view of the client-lawyer relationship and truly focus on service by treating the client as a customer are likely to prosper. Firms need to create a pricing structure offering clear analysis of the consumer’s costs benefits. If the lawyer can provide a reasonable estimate, clients should be told if costs are nearing the limit and why, with a meaningful breakdown provided to explain the escalation.

On the international front there had been two major stories of interest in the US. Financier and cricket mogul Allen Stanford has been found guilty by a court in Houston, Texas, of running a $7bn Ponzi scheme. Rush Limbaugh, a talk-show host had referred to law student, Sandra Fluke as a ‘slut’ for her testimony to congress over birth control coverage. President Barak Obama has contacted Fluke for her willingness to speak out on a major social issue. Major advertisers are likely to stop sponsoring Limbaugh.

My recommended reading articles from this week come from The Guardian, ‘A Cleaner Conscience: the politics of domestic labour’ and from The Lawyer, ‘2012 QC list shows silk road is not always paved with gold’. The first article offers an insightful analysis of domestic work and the lack of equality offered to the domestic labour workforce. The second article is a sympathetic portrayal of the factors that might deter a barrister from applying for silk.  

I thank the legal representatives, journalists, web editors and publications I have cited, and linked, for allowing me to compose this week’s Sunday Law Review. Readers are welcome to highlight any critical omissions, offer factual corrections or discuss the issues raised in my review.