There is so much to report on since the last SOLO magazine in summer. Firstly, as many of you will already know, I am delighted to confirm that I was elected as Deputy Vice-President of the Law Society of England and Wales and took office at the AGM in October 2020. More about that elsewhere in SOLO!
Unfortunately, the pandemic continues and we are now in the middle of the third lockdown with no real end in sight although the vaccine has provided some hope. Remote Council meetings have continued, and it has been another very busy period of continued hard work at the Law Society to support members through the ongoing challenges. Brexit has finally happened but that is by no means the end of the matter for members.
The Law Society Council last met remotely on 9 December 2020. I set out below details of the main issues discussed at that Council meeting together with a brief update on developments since then. A copy of the CEO’s report to Council’s December meeting, which contains more detailed information, can be found on our website at www.spg.uk.com.
The 3Rs campaign
As indicated the pandemic has continued to be a critical issue for the profession. The ‘Reset, Resilience and Recovery’ campaign has supported members whilst the Law Society has continued to engage with the government on key issues such as the operation of the courts and the status of solicitors as key workers. The Law Society’s new website has been updated with revised guidance on the third national lockdown and what it means for members. If there are any particular issues on which you need further advice or support, please do contact me to let me know.
Covid-19 and Lockdown
The Law Society has called for a two week pause of non-custody Crown and magistrates’ court work amid escalating safety concerns in courts. Whilst the Law Society has maintained throughout the pandemic, that it is essential for justice to continue to be delivered, the safety of court users and those working within the justice system is paramount, particularly as new strains of the virus are emerging. Due to serious concerns expressed by a significant number of members about safety in courts and the rapid acceleration of transmission, the Law Society has urged urgent be taken in courts to ensure safety and stem the rate of infections. The Law Society has suggested that a two week pause in all non-custody work in Crown and magistrates’ courts will allow measures to be taken to ensure courts are safe.
The Law Society published its “Law under lockdown” report on 25th September 2020, in time for the September review of the Coronavirus Act 2020 in the House of Commons. Included were issues such as how access to justice had been affected, eg for those in prisons and other forms of detention, and the extent to which other important safeguards, such as those contained in the Care Act 2014 and Mental Health Act 1983, had been affected by the introduction of temporary easements. The Law Society continues to focus on the next review of the Act in 2021.
Tax Advice Work
If your firm does any type of tax advice work, you should have applied to the SRA or another AML Supervisor, such as HMRC, to be supervised for money laundering under the Fifth Money Laundering Directive which amended regulations around the definition of a “tax adviser” to include more activities than before. Areas where tax adviser services may now require registration include litigation, family, employment law, estate planning, wealth management and corporate. Conveyancing and mergers/acquisitions were already in scope. You should have registered by 10 January 2021 but you can still apply if you have not done so.
Attacks on the rule of law
The recent months have been challenging for the rule of law. You will all have read about the comments made by the government referring to “activist lawyers” and “lefty lawyers”. The Law Society objected strongly to this rhetoric and this was widely welcomed by members.
The Law Society’s joint briefing with the Bar Council in relation to the Internal Markets Bill was cited many times in Parliament. Submissions were also made to the Independent Panel looking at the future of judicial review. The Law Society set out the minimum standards for any system of judicial review.
Regulation
The LSB recently approved the SRA’s SQE application. The Law Society has consistently raised members’ concerns about the impact the SQE may have on equality and diversity in the profession, with stakeholders and is pleased to see further commitments from the SRA in this area. The Law Society has also worked extensively with members to develop a position on the economic crime levy.
Promoting Access to Justice
In January 2021, the Lord Chancellor settled a case bought by the Law Society regarding costs assessments which means that solicitors now have the right to have civil legal aid bills between £2,500 to £25,000 assessed by either the Legal Aid Agency (LAA) or by specialist judges, while the LAA consults with the profession on the most appropriate way for legal aid costs to be assessed in future. Previously the LAA was seeking to transfer the assessment of bills from the courts to legal aid officials.
The government announced its decision following consultation on the “accelerated items” under Criminal Legal Aid Review (CLAR). Expressly as a result of lobbying by the Law Society, the government doubled the fee to be paid for cases “sent” to the Crown Court. Further, in immigration appeals, after the Law Society worked with a firm proposing a judicial review, the MoJ agreed to introduce an hourly rate scheme to replace the new fixed fee scheme until there is a base of evidence showing how much work solicitors reasonably have to do on each case.
Following lobbying by the Law Society, the government announced the restarting of the review of civil and criminal legal aid means tests. The review is due to report in Spring 2021 when a consultation will follow.
Work continues to seek urgent support to enable criminal legal aid firms to survive. As of 14 December 2020, there were just 1,122 firms holding a criminal legal aid contract, 149 fewer criminal legal aid firms than in 2019 and far fewer than the 1,861 firms that existed in 2010. Fewer solicitors joining the profession are choosing to do criminal law, instead opting for other areas of legal practice which are more sustainable as a career choice.
Brexit
The UK-EU transition period ended on 31 December 2020. The UK has left the single market and EU laws no longer apply to England and Wales qualified solicitors. On 24 December 2020, the UK and the EU reached a new Trade and Cooperation Agreement. The Law Society welcomed the Free Trade Agreement, but this is just the beginning of the process as new relationships are built. It affects how members can provide services and how establishments work in the EU area. It will have consequences for areas such as intellectual property law, anti-money laundering and VAT. The Law Society has published country-by-country guides for nine key jurisdictions, as well as guidance on legal professional privilege in the EU and on intellectual property. Guidance and free webinars are available on the Law Society website explaining the implications for members.
The Law Society is working with national governments, bars and law societies across the EU to improve the position for members. It also continues to urge the EU to support the UK’s accession to the Lugano Convention which would allow civil and commercial judgments to be recognised crossborder and allow ordinary citizens as well as small and medium size businesses to enforce their rights without taking up prohibitively expensive actions in multiple courts. The Law Society is urging early determination on data protection adequacy to come on the tailcoats of the deal to ensure data flows between the UK and EU can continue.
Mental Health Act
Following publication of the Mental Health Act White Paper, the Law Society warned that proposed changes to the mental health system must be properly funded to be effective. Reform must be backed up by proper funding to meet the rising pressure on services and to address the poor state of infrastructure in many hospitals to ensure the safeguards for people detained under the Act are sustainable, effective, and enforceable. Data has indicated that black patients are subject to a level of restraint that is three times higher than white British patients. The Law Society welcomed the commitment to develop culturally appropriate advocacy for all ethnic backgrounds and communities.
CQS
CQS was launched on Law Society Learning, the new learning management service (LMS). This will offer an integrated and seamless journey for members via a single sign-on, and enhanced training with easy to use modules followed by assessments.
Law Society Connect
On 19 October 2020, the Law Society launched an online digital community portal to 5,000 small firm members called “Law Society Connect”. This is a place where small firm members can meet, share best practice, learn from peers, collaborate on common challenges and innovate. If you have not already registered on the new My Law Society, I would encourage you to do so and select “Small Firms” as a network you have an interest in. You will then be invited to join Law Society Connect. There are already well over 250 members and it is a lively portal covering all kinds of topics including work referrals.
Diversity and the profession
The Law Society published research which investigated the career experiences of Black, Asian, and Minority Ethnic solicitors working in the legal profession. Full details are on the website. Unsurprisingly, the research found that solicitors from Black, Asian and minority ethnic backgrounds are twice as likely to be sole practitioners. Other key findings were that in small firms, almost a quarter of all solicitors are from Black, Asian and minority ethnic backgrounds but just one in 10 solicitors are from a Black, Asian or minority ethnic background in the largest firms. Also, retention rates for Black, Asian, and Minority Ethnic solicitors are particularly low in larger City firms and many Black, Asian, and Minority Ethnic solicitors feel that they have to work much harder than their white counterparts and do not feel as comfortable in their work. They also experience slower career development and a significant pay gap. The report published clear recommendations for firms with the aim of improving equality and inclusion in the profession.
The Judicial Diversity Forum, of which the Law Society is a member, worked on the publication of the “Combined Statistical Report” in September 2020, looking at diversity both within the judiciary and in the profession that provides the pool of applicants for judicial appointment. The Law Society continues to press the Forum on the data and analysis that is needed to understand and address the reasons why diversity is not improving as quickly as it should.
International
The Global Legal Centre campaign continues to focus on specific audiences, promoting England and Wales in the ‘Jurisdiction of Choice’ report to key stakeholders in target areas. The international team continue their strong work on market access in Africa. Evidence was also submitted to the Lords International Agreements sub-committee on the negotiations with the US, Japan and Australia, as well as general trade asks for legal services.
Member Ballot
As you will be aware, the Law Society AGM approved proposals for the reform of Council and the introduction of a term limit for Council members. Both of these matters were subsequently voted on by a ballot of all members. The results were announced on 11 January 2021 and confirmed that the majority of those who voted were in favour of the reforms and the term limit. This now means that there will be some changes to the constitution of Council, including in a number of geographical areas, and also that the term of Council Members will be limited to 12 years.
Please do have a look at the new Law Society website and register on My Law Society if you have not already done so. Please also follow me on LinkedIn to keep up to date with Law Society work. If you would like any further information on Law Society activities, or wish to discuss any issues affecting sole practitioners, or indeed, if you would like me to raise any matters with the Law Society, please do not hesitate to contact me on info@legalswan.com or on 0121 551 7866.
Lubna Shuja
Deputy Vice-President of the Law Society
SPG Law Society Council Member
Chair of the Law Society’s Membership and Communications Committee
Member of the Law Society Board
23 January 2021