Legislation

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. 

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. 

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.” 

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). 

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”. 

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. 

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 long-awaited proposal for an EU regulation on jurisdiction and applicable law in the field of succession and wills is now expected to be adopted by the Commission in mid-October. The Spanish EU Presidency intends to treat it as a priority in early 2010.