Legislation

The last Queen’s Speech before next year’s General Election covered an ambitious range of measures, including free social care for the
neediest pensioners, help for consumers to bring group legal action against fi nancial institutions and compulsory reporting of gender pay diff erences. The programme, to be implemented within 80 Parliamentary days before the June election deadline, is made up of ten new Bills, three carried over from the previous session and two draft Bills. The legislation includes: 

• Th e Social Care Bill, which applies to England only, would see 400,000 elderly people offered help with care in their own homes.  
• The Financial Services Bill would establish a Council for Financial Stability, and makes banks and fi nancial fi rms hold larger reserves of capital and set up “living wills” to make it easier to wind down in the event of failure. However, there is no cap for bonuses. 
• The Equality Bill would extend the ban on age discrimination to the provision of goods and services as well as in the workplace. Businesses with more than 250 employees will have a duty to report on gender differences in pay. 
• A Bribery Bill makes it illegal to bribe a foreign offi cial or accept a bribe to obtain or retain business. 
• Th e Fiscal Responsibility Bill commits the government to halving the £825 billion budget deficit within four years. 

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

Pupils have not historically been granted practising certificates; however, arrangements are currently in hand to issue practising certificates to those who will be undertaking their second six months of pupillage from 1 January 2010. 

As of 1 January 2010, barristers will be committing a criminal offence if they carry out reserved legal activities without a practising certificate. The Bar Council is therefore reminding its members to apply in good time. Also from this date, barristers without practising certificates will be prohibited from administering oaths. Until then, barristers do not need a practising certificate or rights of audience to administer oaths. These changes are brought in by the Legal Services Act 2007 (see also Bar News p iii). 

Legislation is a “crude and inflexible tool” as far as protecting rights of privacy is concerned, Desmond Browne QC has warned.
Addressing a Conservative Party Conference fringe meeting, the Chairman of the Bar Council looked at the way the courts and Parliament have handled the balance between privacy rights and freedom of expression. 

“I believe that the incremental development of the law by the judges has proved to be infinitely preferable to the big bang of legislation,” he said. “I think that the case law, European and domestic, which lays down that neither the right to privacy nor that to freedom of expression has presumptive pre-eminence over the other is the right approach.” 

In the wake of the recent Court of Appeal interlocutory judgment giving the green light for the first trial on indictment by a judge alone, David Wolchover and Anthony Heaton-Armstrong propose some convenient and inexpensive jury tampering countermeasures 

The Northern Ireland judge-only Diplock courts for the trial of cases involving a terrorist dimension linger on, though nowadays with a much reduced throughput. But while the risk of jury intimidation and religious bias may have waned in Ulster the perceived problem of jury tampering—or “nobbling”—had supposedly increased in England and Wales to such an extent that provision was finally enacted in the Criminal Justice Act 2003 (“CJA 2003”), s 44 for trials on indictment to be conducted where appropriate without a jury. 

In July, the House of Lords EU Committee adopted its Report on this October 2008 proposal. The Bar Council had given evidence to its preceding inquiry. For the report, see: http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/126/126i.pdf and for
the supporting evidence, see: http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/126/126ii.pdf 

The report has been quite well received in Brussels, despite being rather critical of the current Commission proposal in places. It takes a similar line to the Bar Council on the fundamental issue of the level of harmonisation, urging that rather than apply maximum harmonisation across the board, the Commission should aim for what it terms “differentiated harmonisation”. 

Access to justice must be a priority for the government, according to a report from the Centre for Social Justice. 

LEGAL Services Commission proposals to cut legal support for vulnerable children and families have been savaged in a damning report from the all-party Justice Select Committee. The report, published today, concludes that 'proposals for reform were based on incomplete data, [and] a superficial understanding of the supply of legal services in this area'. The LSC's approach to reform is condemned as 'flawed, weak and inflexible'. It is criticised for a 'conclusions first, evidence after' approach to policy-making, having commissioned Ernst & Young to gather data to inform its thinking after proposing swingeing cuts to the system. The full press release is available on the Bar Council website. (www.barcouncil.org.uk) 

THE Bar Council has welcomed the announcement by the Legal Services Commission that Best Value Tendering (BVT) will not be introduced before a full evaluation has been undertaken. This follows months of vocal opposition from the Bar Council, the Criminal Bar Association (CBA) and the Law Society against the LSC’s proposals. Having reviewed the submissions to its consultation issued in March, the LSC has recognised in its response published yesterday that the timetable for undertaking pilot schemes was too fast and would give insufficient time for a proper evaluation. Under revised arrangements, pilot schemes will operate for twelve to eighteen months before they are reviewed, with a proposed publication date for the review of August 2012 and no further implementation before 2013. The Bar is also pleased to see the LSC’s commitment to undertake a full review of the pilots before deciding whether there should be any further implementation. 

Despite yesterday’s announcement, the Bar remains concerned about the concept of BVT which the LSC’s response document does not address. The Bar says the LSC has failed to make the economic case for the introduction of BVT. It remains very concerned that the disruption to the provider base will outweigh any intended savings. The Bar remains extremely concerned about the absence of plans to a carry out a full impact assessment on BME and women practitioners during the pilots, since the expected adverse effects of the scheme will impact on these groups disproportionately. 

The European Commission is consulting the public to determine whether International Standards on Auditing (ISAs) should be adopted
in the EU. The deadline is 15 September 2009. 

See: http://ec.europa.eu/internal_market/auditing/isa/index_en.htm