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.
This year’s Sunday
Times Best 100 Companies to Work For list includes six law firms:
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.
© TTR
