News update from The Bar Council
The Bar Council provides a regular News Update on general legal issues that will be of interest to our members.
The most recent News Updates can be viewed below. If you would would like to sign up to receive this News Update by email, please contact The Bar Council.
Mental Capacity Act
New Law Journal - Further reports appear that the Bar Council has called for the Mental Capacity Act 2005 code of practice to be updated to address human rights, covert medication and social care issues.
In January, the Ministry of Justice issued a call for evidence as part of its consultation on revising the Act’s code of practice. In its response, published this week, the Bar Council says the code, while ‘very impressive in its clear, user-friendly language’, is ‘overdue an update’.
It says the code does not cover covert medication despite recent case law clarifying that this is a serious interference with an individual’s right to respect for private life under Article 8. The Bar Council also calls for the code to include a chapter on human rights, and brands the current chapter on protections for individuals as ‘out of date’.
Careers and diversity
Black Solicitors’ Network BAME Careers Guide (print) – In the Spring 2019 edition, Benjamin Burns, a previous Education and Training Policy Analyst at the Bar Council, talks about the range of work going on to support diversity at the Bar, as listed on the Bar Council’s website under www.barcouncil.org.uk/careers.
The same edition includes an interview with #IAmTheBar Social Mobility Advocate Tunde Okewale MBE.
Criminal legal aid review
Law Gazette - Three months after announcing that it was embarking on a wider review of criminal legal aid fees, the Ministry of Justice has today provided further details of the review's scope and remit, as well as who it is working with.
The ministry says it wants to reform the fee schemes so that they fairly reflect, and pay for, work done, support market sustainability, limit 'perverse' incentives, and ensure proportionate administrative burdens on everyone.
The review will be overseen by a cross-agency Criminal Legal Aid Review Programme Board, chaired by the ministry's director of access to justice. The board is being advised by a Defence Practitioner Advisory Panel comprising of representatives from 14 bodies, including the Law Society, Bar Council, Criminal Bar Association, Solicitors’ Association of Higher Court Advocates, Criminal Law Solicitors' Association, London Criminal Courts Solicitors' Association, Legal Aid Practitioners Group, Young Legal Aid Lawyers and the Big Firms' Group.
Law Gazette, The Times (The Brief) - As the criminal Bar continues to highlight examples of inadequate legal aid fees for 'preparation heavy' cases, a trade union for senior civil servants says it has secured a 10% pay rise for Crown prosecutors.
A CPS spokesman told The Brief yesterday: “The average award under this package is around 5.5 per cent over two years – very much in line with other public sector arrangements.”
The Bar Council, the body that represents barristers in England and Wales, said that it was “pleased to see that extra money has been found to improve the pay of CPS lawyers”.
Richard Atkins, QC, the council’s chair, added: “This, however, is in stark contrast to the failure to increase the levels of pay for the self-employed members of the Bar who provide an essential public service prosecuting the vast majority of serious cases tried in the crown court.
“The pay scheme under which self-employed barristers are remunerated has had no increases since its inception in 2001, and has therefore been eroded by inflation, and actually suffered a 5 per cent cut in 2012. This needs to be addressed by the CPS as a matter of urgency. There can be no justification for one part of the system to receive a pay increase whilst another part is ignored. The Bar Council looks to the Director of Public Prosecutions to address this iniquity as a matter of urgency.”
Legal Action (print) publishes the legal sector’s reaction to the LASPO report.
Post-implementation review of Part 1 of the Legal Aid. Sentencing and Punishment of Offenders Act 2012 (LASPO) has been lowkey. While the minor changes to the scheme announced by the government were welcomed by practitioners, concerns were expressed that the government is delaying action to counter the worst impacts of LASPO.
In a press release, Richard Atkins QC. chair of the Bar Council, typified the views of many legal aid lawyers in describing the review as a 'wasted opportunity' with the report offering 'little of substance to ease the impact of LASPO on vulnerable individuals seeking justice'.
Legal Futures - Nearly half of legal regulators do not undertake enough supervision of anti-money laundering (AML) efforts, according to the organisation set up to scrutinise them.
The Office for Professional Body Anti-Money Laundering Supervision (OPBAS) said it was due either to lack of resources, structure or focus at senior levels. The Law Society, Bar Council and Chartered Institute of Legal Executives were also visited by OPBAS, but as they delegate their regulatory responsibilities, they were not assessed on their risk-based approach, supervision or enforcement.
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Mental Capacity Act
Local Government Lawyer - Local Government Lawyer reports that the Bar Council has said the Mental Capacity Act code of practice must be updated to address issues around covert medication, human rights and social care.
Giving evidence to a Ministry of Justice consultation, the Bar Council highlighted how the issue of covert medication was not currently discussed in the Code but had recently been addressed by the courts, reports Local Government Lawyer.
The Bar Council also suggested that those updating the Code consider including a chapter on human rights, which it said should introduce, in particular, the United Nations Convention on the Rights of Persons with Disabilities.
It branded the current chapter on protections for people who lack capacity to make decisions for themselves as “out of date”, citing the fact that there has been “significant wholesale reform of social care legislation since the Code was drafted” and that “there is now for the first time a statutory framework for adult safeguarding”.
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The Times (print and online) – The Times reports that Lady Justice Hallett and Lady Justice Davies have said women lawyers are still facing sexual harassment from colleagues.
The Court of Appeal judges were speaking in a podcast produced for International Women’s Day by the Judicial Office. “When we hold events around the country,” Lady Justice Hallett said, “I do get young women coming up telling me stories that are horrifying — that are still happening.”
Sam Mercer, Head of Equality and Diversity at the Bar Council, is quoted. She said: “Discussing harassment and other scenarios in chambers is proving a great way to start difficult conversations over behaviours and attitudes. We hope this will encourage victims to step forward and colleagues to speak out.”
Daily Express - Litigation specialist Therium is to provide £1million in not-for-profit funding to people struggling to afford legal costs as it looks to tackle the “drastic consequences” of Government cuts, reports the Daily Express.
Therium is reported to be teaming up with Labour peer Lord Falconer to fund cases and law centres in need of support in what is believed to be an industry first. As part of the initiative, the organisation will focus on the advancement of human rights, equality and diversity, as well as the protection of children, the elderly, the disabled, asylum seekers and other disadvantaged groups.
An initial £1 million a year will be put up, with the figure likely to increase.
Access to legal aid has plummeted, says the Express, with funding falling by 20 per cent since 2013 to £1.6 billion a year in 2018. Legal aid stood at around £40 per head in 2010, but by 2018 this had fallen to just £24 a head, reports the Express.
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International Women’s Day
Politics Home – Politics Home reports that the Bar Council has said that it is crucial to public trust in the justice system that the most senior and experienced among the Bar and on the bench are reflective of the society that they represent.
Published to coincide with International Women’s Day (today), Politics Home reports that the Bar Council says: “Promising equal entry rates to the Bar drop off towards the senior levels, revealing a reality, whereas of 2018 figures only 15.8 per cent of QCs are female.
“The significance of such a disparity reaches beyond the profession itself. Barristers play a key role at the forefront of the administration of justice and in upholding the rule of law, providing the best quality of service possible to clients both domestic and international. Many barristers also go on to become judges, and it is crucial to public trust in the justice system - and to the reputation of our legal system more widely -that the most senior and experienced among the Bar and on the bench are reflective of the society that they represent.
“Progression as an issue is not unique to the Bar, or even the legal profession as a whole. While Britain has the highest proportion of female bosses of all major European economies, this still equates to barely one in 20 bosses being a woman. The nature of the largely self-employed Bar renders unique challenges for female barristers; aside from progression, retention, wellbeing and harassment have come up as issues recently, and all of this is also affected by the wider context of the external and financial pressures upon our justice system. The considerations are widespread, and the support needs to reflect that.”
Politics Home also points to the Bar Council’s Next 100 Years campaign.
The Times (online) – The Times re-publishes an article by Sam Mercer, Bar Council Head of Equality and Diversity, on the pilot of a reporting waiver scheme which is designed to make it easier for members of the Bar to talk about incidents of harassment.
She says: “Part of the problem the Bar has had so far in tackling this issue is that sexual harassment is regarded as serious misconduct under the barrister’s code of conduct. This brings with it obligations to the Bar Standards Board (BSB) that mean if barristers witness harassment by other barristers, they are required to report incidents to the regulator.”
Mercer also points to what the Bar Council is doing to tackle harassment at the Bar, including training.
Legal Futures – Legal Futures reports on responses from the Bar Council, Law Society and CILEx to the oversight regulator, Legal Services Board’s, business plan.
Legal Futures reports that the Bar Council said it believed that the proposed ‘single digital register’ of legal services providers was unnecessary.
In its consultation, the Bar Council said: “The Bar Council already has its own register of barristers and a single register would to some degree duplicate this. We think the improvements made to the Legal Choices website and measures being undertaken by regulators and representative bodies are sufficient to enable consumers to make an informed choice about legal services.”
The Bar Council said that, if the LSB went ahead with its review of section 51, it wanted to emphasise “the importance of this funding to the delivery of activities by the Bar Council” in the public interest.
“Examples include its law reform and public legal education work as well as its delivery of ethical and practice management guidance to barristers and chambers.”
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