Legal and professional developments: review of 2019
Access to legal advice and representation
There has been no improvement in relation to access to legal services, but rather a deterioration in the position. This is particularly so in relation to family law matters, where increasing numbers of non-lawyers find themselves outside the scope of legal aid. They struggle with the complexities of family law and procedure. Family law judges continue to express their concern at the number of unrepresented litigants in their courts.
The Bar Council has recently expressed its concern at the increasing number of paid Mckenzie representatives appearing in courts. They are unregulated and appear to be uninsured. The question for the profession is whether litigants in person who cannot afford barristers or solicitors can fairly be criticised for choosing the cheaper option.
The Bar Pro Bono Unit has changed its name to “Advocate”. It helps some, carefully chosen, poor claimants with free advice and/or representation. This organisation regularly states that it should not operate as an alternative to a proper, state-funded, legal service. However, it cannot escape the fact that it is, essentially, a charity. A comparison can be drawn with homeless people relying on small change from the pockets of the wealthy.
2019 also saw a continuing reduction in the number of practising criminal barristers who are simply unable to live on the wholly inadequate fees for their work.
The accession to power of a Conservative government
The shattering defeat of the Left in the general election and the assumption of power by a Prime Minister whose personal life would, in previous decades, almost certainly have affected his rise to power, has resulted in a number of areas of uncertainty for lawyers. These include the constitutional position of the judiciary, the organisation of the civil service and the extent of deregulation of a number of areas of legal controls.
Employment law and procedure
Employment law and procedure has continued to develop in complexity, mainly through a mass of decided cases. These Chambers have held monthly seminars on recent developments in employment law. On average, 12 significant new cases have been reported in our Newsletter and discussed in the seminars. For specialist lawyers, these developments are challenging. For non-lawyers they make self-representation, particularly in the area of disability discrimination, practically impossible.
The Supreme Court decision that the government’s prorogation of Parliament was unlawful has resulted in more work for Constitutional lawyers, with the need for Constitutional law textbooks to be rewritten. It can also be seen as representing a direct confrontation between the judiciary and the executive with few historical parallels.
Independence of the judiciary
Any future threat to the independence of the judiciary, whether by the politicisation of judicial appointments or any other rumoured developments, must be strenuously resisted by the legal profession.
It is anticipated that the Conservative government may embark upon a general programme of legal deregulation. For employment lawyers this may mean significant changes in employment rights and health and safety regulations. For example, unlimited compensation in workplace discrimination cases is entirely an EU concept transposed into UK law. Detailed health and safety regulations, aimed at the protection of workers, are also directly based on EU Directives. The future is uncertain.
Regulation of the profession
It has been rumoured that the Bar Standards Board (BSB) may cease to exist through the general reorganisation of the profession’s regulatory bodies. If so, it may be anticipated that few in the profession will mourn its passing. The BSB is responsible for the Bar Handbook, generally regarded as grossly over-complicated and subject to frequent amendment. The Bar Council is reported to have pleaded with the BSB to recognise the everyday demands of practising lawyers and to reduce the complexity of the Handbook. New, complex transparency rules introduced by the BSB have proved virtually impossible to implement. Similarly, simple, but admittedly sometimes ineffective, continuing professional development rules have been replaced by rules of a grinding complexity. The relationship between the BSB, the Bar Council and the Inns of Court appears to be impenetrable.