Legislation

When the relevant parts of the Legal Services Act 2007 came into force on the 1 January 2010, it became a criminal offence to undertake a reserved legal activity, such as exercising a right of audience without having in force a valid practising certificate. 

All pupils who are currently undertaking their second six months pupillage have now been sent a practising certificate. All pupils and pupil supervisors have been written to about the implications of these changes and guidance can be found on our website: 

The Bar should not fear the development of enforceable standards of advocacy in all areas of practice, writes Nick Green QC 

 I have barely got my feet under the Chairman’s desk on the 7th floor of the Bar Council offices on Holborn when it is time to write my second Chairman’s Column.   

The Legal Services Commission (“LSC”) has come under fire over its criminal legal aid reforms in a devastating National Audit Office (“NAO”) report. 

The report, into the procurement of criminal legal aid, warns that reforms to criminal legal aid threaten value for money and the provision of an essential public service. It criticises the LSC for relying on “inaccurate and incomplete” data. 

Name: Nick Newman
Position: Senior Clerk
Chambers:  Cloth Fair Chambers 

Criminal barristers have reacted angrily to last-minute changes to a deal on Very High Cost Criminal  (“VHCC”) cases. Bar representatives have been negotiating with Ministry of Justice officials for nearly two years to secure a flexible pay scheme for advocates working on VHCC cases, which include the most serious terrorism and murder trials. However, in November the government said it wanted to introduce a new option: extending the existing fixed-fee scheme for shorter cases of up to 40 days to include cases lasting up to 60 days. The Legal Services Commission (“LSC”) confirmed the change in its consultation paper, published in December, “Very High Cost (Crime) Cases 2010”. 

The Legal Services Board (“LSB”) has published new details on liberalising legal services. The consultation paper, “Alternative Business Structures: Approaches to Licensing”, proposes guidance to govern the licensing of alternative business structures, which are due to be introduced in 2011. It includes a widening of the complaints-handling system to deal with firms that offer legal services alongside other services. 

The Law Reform Committee essay competition 2009 was won by Tom Cleaver with his essay “Modernising the Law of Markets and Fairs". Second place went to Liam Loughlin for his entry "Reforming the Law Concerning Physician Assisted Suicide". The winner of the CPE category was Thomas Hope with his entry “Bringing Some Sanity to the Insanity Defence" and runner-up CPE entry was James Hamerton-Stove with “Shifting the Burden in English Defamation Law” 

The Bar Standards Board has paved the way for fundamental changes in barristers’ working practices by giving approval for barristers to supply legal services through the legal structures known as Legal Disciplinary Practices (LDPs). The BSB has taken significant decisions in order to open up the legal services market so that consumers have access to even better value, quality, legal services in fulfilment of the Regulatory of the Legal Services Act 2007. 

The BSB formed an Alternative Business Structures Working Group in 2007 to consider how barristers might become involved in LDPs and ABSs. The work of that group has been thorough and detailed, including three consultations on various aspects of the possible impacts of the Legal Services Act. The reports of the Group were considered by the Board at its meeting on Thursday 17 November and the Board accepted the following recommendations: 

The Legal Services Board (“LSB”) will have powers to enter and search the premises of the Bar Council and other legal profession regulators under government proposals. The Ministry of Justice is consulting on the enforcement powers of the LSB when it assumes its role as oversight regulator early next year. Th ese include the power to take over some of the functions of any persistent or seriously failing regulator. Th e LSB will be able to apply for a court warrant to enter and search the regulator’s premises, and retrieve any documents needed to ensure a seamless takeover. Th e consultation asks whether any material should be exempt from search warrants and what a judge should take into account when deciding an application. It ends on 21 January 2010. In a first for the legal profession,
the LSB has appointed an independent consumer panel of eight lay persons to help shape the regulatory framework for lawyers. An early priority for the panel, which meets for the fi rst time at the end of November, will be the issue of referral fees. The experience of panel
membe r s cove r s t r ading standards, housing, business advice, employment law, health care, policing and refugee policy. Dr Dianne Hayter, the former vice-chair of the Financial Services Consumer Panel, who will chair the panel, said it would assess proposals “from the standpoint of users of legal services”. It will publish its advice. 

THE Bar Council and the Criminal Bar Association (CBA) have welcomed the final approval by Parliament of many of the changes for which they had been calling to the Coroners and Justice Bill which received Royal Assent on 12 November 2009. 

The Bar Council and the CBA were concerned about a number of features of the Bill, particularly those relating to the reform of the coroner’s system, on which they had made representations to the Government and Parliament over the past year. The Government has recognised that legal aid should be available for bereaved families and other interested parties where the state is represented and that the size of coroners’ juries should not be reduced. Potentially farreaching proposals for data sharing were dropped by the Government in response to widespread concern, including from the Bar. The Bar Council is pleased that the use of Damages Based Agreements has been restricted to regulation of damages-based agreements in respect of employment claims which may go to an employment tribunal. This will allow the Government and others to take into account the conclusions of the review of the costs of civil litigation which is being conducted by Lord Justice Jackson, to which the Bar has contributed.