Law and Society – which iS tobe MaSter?
In 2008 th Innr and Middl Tmplclbrat th 400th annivrsary of thgrant, by Lttrs Patnt from Jams 1, of all th frhold land around th TmplChurch. 1608 thrfor markd th startof th modrn history of th Bar – atlast that part of it which has grown upSouth of th Strand!By Mr Justic Aikns, Hon. Fllow, StJohn's Collg, Cambridg
aLL or nothing? - an overviewof reStrictionS on parentSdeciSion-Making powerS
Parnts with parntal authority arovrriddn asily onc th wlfarprincipl and public policy arconsidrd. Th child is ultimatlyprotctd – whthr by th stat or bythir call on th wlfar principl.By Pnny Booth, Profssor of Childand Family Law and Moyra Throssll,Post Graduat studnt StaffordshirUnivrsity Law School
fit for purpoSe? the review ofLow teMpLate dna
Th us of Low Copy Numbr (LCN)DNA in fornsic scinc, and th criminal justic systm, has bn affctd inth wak of Justic Wir’s ruling inth trial of Mr San Hoy (Th OmaghBombing Trial) ; “I am not satisfid thatth publishing of two journal articlsdscribing a procss invntd by thauthors can b rgardd, without mor,as having "validatd" that procss for thpurpos of its bing confidntly usd forvidntial purposs.”By Profssor Allan Jamison and DrRhonda What, Th Fornsic Institut
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It seems unlikely that those seeking to qualify andpractise as barristers, and indeed the professionitself, have ever confronted a set of more serious,complex, and in some cases contradictory chal-lenges than they do at present.Over recent years, BVC enrolments have beengrowing steadily (driven in part by demand fromthose from the very ethnic and socio-economicbackgrounds, that Bar must encourage into theprofession if its laudable policies on access anddiversity are to succeed).However, pupillages have been declining, andmarkedly so. Initially this may initially have beencaused by the introduction of mandatory fund-ing for pupils. However, in recent years it hasalmost certainlybeen attributableto some of the fun-damental and longterm uncertain-ties which facethe “independent”Bar. These include,most notably: thepost-Carter chang-es to Legal Aid; theincreasing numberof solicitors withhigher rights (andthe likelihood thatthe SRA will makeit even easier to acquire them); and, as
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Nws
From BVC to Pupillage – Routes, ObstacleCourses, or Blocked Paths
TriNiTY TerM iSSUe
eSSeNTiAL reADiNG FOr BArriSTerS
www.bastmagazn.com
Richard de FriendDirector, College of Law,London, Bloomsbury
p.21BVT could rsult in a shortag of criminal lawyrs
e
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. 1999
Settlement gives Legal Aid Providers certaintyand stability for the future
The Law Society and Legal Services Commission(LSC) recently concluded a negotiated settlementof the litigation brought by the Society tochallenge the contract signed by legal practicesin April last year.This settlement stems from the significantsuccess achieved by the Law Society in theoriginal litigation before the High Court.Succeeding on almost all points raised, the LawSociety appealed the point that was lost. In reply,the LSC appealled all the points that the LawSociety had won. The hearing before the Courtof Appeal was regarded as so significant that theLord Chief Justice sat.The Court found for the Law Society with a costsorder in their favour.It is perhaps significant that the LSC, in defeat,indicated that they had anticipated that result.This caused many practitioners to questionwhy the LSC chose to pursue expensive appealproceedings if the outcome was “anticipated”. As a result of inaction on the part of the LSC inresponse to the Court of Appeal judgment, theLaw Society issued Judicial Review proceedings- with costs escalating, a bold but confidentdecision.It was therefore welcome that the LSC and theLaw Society finally sat around the table togetherwith the Ministry of Justice and brought thisexpensive litigation to an end.The negotiations secured the following:
• An increase of 2% on all legal help fixed feesand underlying hourly rates from 1st July 2008.• Care level 2 fee increases from £347 to £405.• A 5% increase in controlled legal representation
(CLR) fees and rates for mental health.
• A 5% increase in CLR fees and rates for
immigration.
• A delay in implementing private law family
litigators’ graduated fees.
• A closed list of CLACS and CLANS planned forthe period ending April 2010.• A moratorium by the LSC in not seeking
to recover historic unrecouped paymentson account (UPOAs) over 6 years old and
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LSC publishs 'rout map' for civillgal aid
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I
n 2008 the Inner and Middle Templecelebrate the 400th anniversary of the
grant, by Letters Patent from James1, of all the freehold land around
the Temple Church. 1608 therefore
marked the start of the modern historyof the Bar – at least that part of it which hasgrown up South of the Strand! To mark thisimportant anniversary the two Inns are hold-ing a year long celebration. The “intellectualbackbone” to the celebrations is being pro-vided by a series of five symposia, or publicmeetings, under the general title: “The Lawand Society – which is to be Master?”. Theworld – renowned Greek charitable organi-sation, The Alexander Onassis Public BenefitFoundation, has generously sponsored theseries. Why are we holding these symposiaand what do we hope that they will achieve?
During the 400 years after 1608, lawyers –
the judges, barristers and solicitors - havebeen central in laying the foundation inEngland and Wales of the rule of law and increating many legal principles that we nowtake for granted. Some examples are: thesupremacy of the rule of law over the wishesof the Executive (from which, some argue, isderived the modern remedy of “judicial re-view of administrative action”); the right tofree speech (but also its curtailment by thelaw of defamation); the illegality of slavery inBritain; the general rule of no imprisonmentwithout charge; and the right to trial by juryfor serious crimes.These principles have largely been set out inthe decisions of the judges, which make upthe common law. The common law’s con-tribution to legal principle is thus unique, be-cause it is organic. It matures over genera-tions and rarely changes abruptly. So, in a
lecture in 2006 Lord Justice Laws described
the common law as
“an emollient regimen”
.But its critics suggest that it sometimes lagsbehind the rapid changes in modern societyand its needs.However, the law is not an abstract construc-tion of rules. Laws are made in order toregulate relationships in the real world;those between individuals and those betweenindividuals and other groups in society; orsociety as a whole. The law and society havedeveloped together, although not alwaysharmoniously. Sometimes it appeared thatthere were clashes between the aspirationsof groups in society and the law – eg. the fa-mous cases about strikes in the early part of
the 20th century. Sometimes it was clear that
the law had not caught up with advances insociety and had to adapt. A prime examplemust be the (reluctant) recognition in
Dono- ghue v Stevenson
that the law had to create anew framework of rights and duties in an eraof mass production and mass distribution of goods The purpose of this series of symposiais to explore the interaction between the law(in particular the common law) and lawyersand other fields which also fundamentally af-fect humanity. There are many areas wecould have examined. We chose to explorethe relationships between the law and eachof: science, religion, politics, commerceand international relations. When we started to think about the topics tobe considered, we became conscious of twofacts. First, that many of our fundamentalideas on law and about the other topics iden-tified - and many of the arguments which stillrage - stem from the ancient Greece. Second-ly, that many principles from the seventeenthcentury have also continued fundamentallyto affect us in today’s world. The first aim of these symposia is to remind us of this histori-cal context of the common law heritage. As an example, take Plato’s view, expressed in
The Republic
, that the judges should be “
the guardians of the laws and the servants of kingly power
”. James VI and 1 would haveapproved of this idea. But his Chief Justice of the King’s Bench, Sir Edward Coke, might besaid to have been the true heir of Aristotle’sview that there must be “constitutionalism”or a rule of law which binds all; with the mag-istrate being the guardian of both justice andequality before the law. Indeed, it has beenargued that the Aristotelian idea of the ruleof law “
…has permeated the culture of Brit-ish constitutional understanding
” . Only lastmonth, the Divisional Court was remindingus that the rule of law must be paramount ina democratic society.Then take the relationship between law andreligion. Plato urged laws to prevent peoplesuggesting “
that God, being good, can causeharm or evil to any man
” – which implies acontrol of religious views by law. Aristo-tle recommended that laws should controleducation and should inflict chastisementand penalties on those who disobeyed (
Ni-chomachean Ethics Book 10
). Aristotle’swritings on religion and science (particular-ly logic) have remained a basis for modernthinking. At the time when James VI and 1 granted theland to the two Inns, the common law thatemerged from The Temple was fashioningthe modern English constitution. Our consti-tutional principles have remained largely theproduct of the common law, rather than beingconfined to statutes or codes. Of course, thisdevelopment did not stop in the seventeenthcentury, with its famous constitutional caseswhich were battles between Coke and his
successors and James 1 and Charles 1. Nor
did it stop in the eighteenth century with suchlandmark cases as
Entinck v Carrington
or
Somerset’s
case. In 2006 the House of Lords
had to pronounce on the legality of the Hunt-
ing Act 2004 and the scope of the Parliament Acts 1911 and 1949, with Sir Sydney Ken
-
tridge QC leading the argument that the 1949 Act and, consequently, the Hunting Act 2004,
were invalid. Their Lordships’ decision rests,ultimately, on the doctrine of the supremacyof Parliament, a doctrine that originated inseventeenth century English cases.Developments in early seventeenth centuryEngland and Europe were important in otherareas we wished to explore, as a few exam-ples will illustrate. Sir Francis Bacon, James1’s Lord Chancellor, remains famous for his
Essays
, but perhaps more important was hiswork on the development of scientific methodand the use of induction as a means of scien-tific proof. Hobbes not only fundamentallyquestioned the basis and function of statepower. He also challenged the traditionalrelationship between Church and State andforeshadowed Enlightenment notions of re-ligious toleration. In Europe, Grotius’ greatwork on international law,
De Jure ac Pacis
,
was published in 1625 when the Thirty Years
War was creating havoc across the centre of the continent. It remains a leading sourceof international law today. The economicdoctrine of the era, mercantilism, gave rise
to the English Navigation Acts and Colbert’s
centralised control of economic activity inFrance. The battle between regulation andthe later doctrine of free trade and betweenstate control of commercial activities and
laissez – faire
continues in the 21st century.
This brings us to the second main aim of these symposia: to explore whether or notthe current influence of the law (in particu-lar the common law) on these five aspects of society’s activities is for good or ill. Thegeneral question might be: does the law (inparticular the common law) simply reflectand follow the developments that have takenplace in society in the fields of politics, sci-ence, religion, commerce and internationalrelations; or has the law enabled, assisted orhindered these developments?In the first symposium, on Law and Science,the distinguished panel of speakers consistedof Baroness Deech (who had been chair of theHuman Fertilisation and Embryology Author-
ity), Sir Tim Hunt FRS (a Nobel Laureate for
medicine), Sir David King FRS, (just retiredas the Chief Scientific Advisor to the govern-ment), and the well known scientist Lord Winston. The meeting was held in the RoyalSociety and chaired by its President, LordRees. There was a lively debate on whetherscientists needed a legal framework and reg-ulation to guide their research, or whetherlaws frustrated the advancement of scienceand so, ultimately, hindered science frombenefiting humanity. Opinion was equallydivided.In the second symposium, on Law and Re-ligion, there was an equally distinguishedpanel of speakers, chaired by Anna Ford,who is a Bencher of Middle Temple. Weheard contributions from Professor AC Gray-ling, the philosopher and atheist; ProfessorMona Siddiqui, Professor of Islamic Stud-ies at Glasgow University, the Rt Rev LordEames, former Archbishop of Armagh, andLord Justice Rix. There was a keen debateon whether religion should have any part inpublic life – eg. in politics, or education andwhat is the proper balance between ensuringreligious toleration and maintainingpublic order.The next symposium will take place
Law and Society – Which is to be Master?
ByMr Justice Aikens, Hon. Fellow, St John's College, Cambridge
O
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where the amount outstanding is
less than £20,000.• New provisions for the
reconciliation of standard monthlypayments (SMP’s), designed to keep changesto a minimum, provide for the right toundertake remainder work on a no faulttermination of the contract.
• A commitment that there will be no price
competitive tendering for civil or family work
before 2013.
In addition the LSC agreed to publish a route
map that is effectively a 5 year programme
setting out its plans for the development of civil legal aid contracts.This route map sets out principles forconsultation and a timetable for proposedchanges to fees, contractual arrangementsand best value tendering.The approach to UPOAs will alleviate theadministrative burden and financial anxietythat has been felt by many firms. Manypractitioners had despaired at demands bythe LSC for repayment of UPOAs from manyyears before. Files had long since been closedor even destroyed leaving practitioners unableto locate information about the payments. Inmany instances no repayment was due.The settlement means that firms can agree tomake no further claim on the fund and anyUPOAs will be treated as a final payment orthe firm may report on a case by case basiswhen the UPOA will be taken into account.Exceptions to this amnesty will include
UPOAs in excess of £20k, where recoupment
has already been agreed or where a “debitnotice “has been issued.The postponement of BVT for civil or familywork does provide at long last some level of stability that is vital for organisations to beable to plan for the future.Some sectors of the profession have felt leftout of the process.For criminal practitioners, the only significantmatter to arise from the negotiations is thecommitment by the LSC to delay BVT incriminal legal aid by 6 months to a date not
before July 2009.
This brings into question why BVT in civil
or family work is delayed by 5 years when
criminal practitioners need to positionthemselves to be able to tender for workin a fifth of the time, particularly in light of recent changes, including police station fixedfees, the new litigators fee and the graduatedfee. Practitioners will also have to come toterms with running the single fee for CrownCourt work that is also due to be introduced
in July 2009 at the same time as the possible
start date for BVT in police stations andMagistrates Court work.Clearly, there is merit in allowing thesechanges to bed in and thereby enablepractitioners to align there businesses to bein a position to properly tender for work.The LSC should be persuaded that there islittle argument to postponing BVT in criminalwork to accord with civil.In his review, Lord Carter anticipated BVTbeing introduced in a stable environmentwith the availability of increased work loadsto allow for realistic tendering. A walk intoalmost any Magistrates Court in the countrytoday will see the previously extensive listsdecimated with court rooms and corridorsghost like. Lord Carter could not haveenvisaged the paucity of defendants beforethe Court and the impact upon case loadsbrought about by means testing, conditionalcautioning and fixed penalties, especiallythose that seem to have been imposed ininappropriate situations.The financial benefits are welcomed withsome caution.The civil lawyers who will benefit from
the increase of 2% on legal help work may
regard that as a paltry increase in view of the historic lack of increase over many yearsbut at least it is an increase! Again criminalpractitioners see nothing of this. Indeed theymay feel particularly disadvantaged whensome of those whom they represent whofind themselves serving custodial sentencesappear to be in line to receive an increase of
20% in their weekly prison income.The closed list of CLACS and CLANSanticipated to cite 15 areas in which the LSC
will work with the local authority and other
providers to introduce a CLAC or a CLAN,
may give some comfort to providers in otherareas. However, it is acknowledged by theLSC that it is crucial to involve the localauthorities and they must be looking withsome concern at what has recently happenedin Cornwall.Cornwall County Council, who had beenworking with the LSC and providers in
the area with a view to launching a CLAN,
recently announced it’s withdrawal fromthat position. The introduction of a CLAC or
CLAN will see the termination of contracts
of other providers in the area. The concernof the Council in Cornwall was that the
introduction of a CLAN was likely to eliminate
a number of providers, both solicitor and notfor profit organisations in their area. Thelocal authority clearly took a responsibleview in seeking to secure the sustainability of the provision of legal services in an area thatposes significant geographical restraints onclients seeking access to such advice.The Delivery Transformation proposalsare intended to secure a likely saving
of £7 million per annum for the LSC in
simplifying their processes, expandingelectronic communication with practitionersand devolving further responsibilities topractitioners. This raises the concernamongst solicitors that the LSC is divestingitself of administrative tasks and passingthem onto providers without reimbursement.There must also be the concern, not onlyfor providers but also for the LSC over therecent disastrous attempt to introduce LSCOn-Line. This required the withdrawal of theservice by the LSC. A limited pilot will seekto correct the failings in the system before itsre-introduction.Overall the settlement achieved by the LawSociety in its negotiations with the LSC isprobably the best that could have beenobtained for civil practitioners, although somegroups representing specialist practitionershave felt aggrieved that they were not moreinvolved in the negotiation process.Des Hudson, Chief Executive of the LawSociety, who led the negotiations, has beenat pains to stress that this settlement is notthe end but only the beginning of the ongoingwork that needs to be done on behalf of legalaid practitioners.The Court of Appeal judgment will clearlyaffect the contractual relationships betweenthe LSC and legal aid providers. It means thatthere can be no unilateral right reserved tothe LSC to amend contracts. Conditions willneed to be clear and any amendment clauseswill need to be narrowly constructed.Finally, the agreement does provide a periodof certainty and stability for civil legal aidpractitioners in this extremely difficult time.It can only be hoped that this successful pieceof litigation against the LSC will induce amore effective discussion process betweenthe LSC and the various representativeorganisations.Roy MorganMorgans Solicitors and Chairman LAPG
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