What has happened in the legal profession in 2018 that I should know about?

“May you live in interesting times” is a blessing that Ancient Chinese people were said to reserve for those they didn’t like – “dull” periods of prosperity and stability being clearly preferable to scarcity and upheaval, even if the latter always seem to fascinate historians and filmmakers. Unfortunately, when barristers go on strike in large numbers, as they did earlier this year despite their profession’s inherently conservative character and affluent reputation, you can be sure that the times are interesting indeed.

The legal profession is affected by the wider issues that impact all of society, which is how the government’s austerity programme – an issue usually framed around cuts that impact people on state benefits – came to squeeze supposedly well-off barristers to the point that they took to the streets to protest. The same applies to improvements in technology, the #MeToo movement, and the sweeping changes that could result from Brexit, to highlight a few. 

To be a good lawyer, you must understand the environment that your clients operate in, but also the landscape of the legal profession itself, from the business drivers of your firm to the debates around changes and key issues affecting the wider legal ecosystem. Your training contract or pupillage interviewer will expect you to be engaged with your chosen profession and the issues that are affecting it. With that in mind, this article rounds up the key talking points and developments from the last 12 months in the law, from the public funding crisis, to the year’s big mergers, to the new solicitors’ ‘super exam’.  

Barristers on the edge

We have already mentioned the problems at the criminal Bar, which came to a head over the spring as dozens of barristers’ chambers started refusing to take on new defence work in protest at changes to the Advocates Graduated Fee Scheme (AGFS) – the latest in a string of austerity reforms that have created a public funding crisis in the justice system. Instead of arguing cases, wigged and robed barristers – a group hardly known for socialist militancy – were to be found protesting outside courts and the MoJ headquarters. Being forced to work for days unpaid and accept fees that barely cover travel costs had driven them to breaking point – many have already left publicly funded work for more financially viable areas of the Bar, or other careers entirely.

Strike action finally ended in June, when members of the Criminal Bar Association (CBA) voted by 52% to 48% to accept the government’s offer of a new £15 million investment to fund legal aid cases, which includes a 1% fee increase for all legal aid fees.

Angela Rafferty QC, chair of the CBA warned that the battle was not over, telling parliament's justice select committee that the next step to securing justice must be to introduce a protected budget for legal aid. She said: "This outcome is neither a defeat nor a victory. The criminal Bar has faced degradation and despair and it still does. This is a step forward. We must all ensure we do not take any more steps back…This proposal is the beginning and not the end of our campaign to improve the broken system we all work in every day. We still face exceptional difficulties, as do our solicitor colleagues. This will not fix the terrible conditions, the unhealthy and unreasonably onerous working practices and the general decrepitude. However, if we consider it a start we can build on it.”

Crises and cover ups

The plight of civil and criminal lawyers and the damage being done to the justice system remain underreported and therefore low on the government’s list of priorities, but they are among the most urgent issues facing the legal profession and the last 12 months have seen simmering tensions boil over into the open. In late 2017, research by polling organisation Ipsos MORI found that the government’s legal aid cuts, aimed at saving money, are a false economy. Findings identified a clear link between receiving early legal advice and problems being resolved sooner, but in contrast, denying early legal advice means relatively minor issues can escalate, creating health, social and financial problems, and placing additional cost on already stretched public services.

More criticisms emerged in January, when Ministry of Justice (MoJ) figures revealed that some 3,200 domestic violence victims had represented themselves against their abusers in court without a lawyer during the previous year – more than double the number in 2012. Sandra Horley, chief executive of Refuge, told The Guardian: “Countless [women] are forced either to fund their own case, or remain at risk. Many of the women Refuge supports have no choice but to represent themselves in court, where they can end up face to face with abusive ex-partners. Much more needs to be done to ensure that the legal aid system recognises the unique financial challenges faced by the women Refuge supports. Too many women are currently turned away because they appear to own assets or savings which are actually under their abuser’s control.”

Perhaps the greatest controversy came in May when an internal MoJ report detailing judges’ concerns about litigants in person was leaked despite the government’s efforts to conceal its existence. In the paper marked “do not quote publicly” obtained by Buzzfeed News, more than half of judges interviewed felt that people forced to represent themselves in court did not properly understand the process, particularly the difference that an early guilty plea makes to sentencing. Several judges said that unrepresented defendants were typically offered no support at all. “Some of them just sit there like a rabbit in the headlights and haven’t got a clue what’s going on,” one said. Another judge expressed deep misgivings at the appropriateness of witnesses being questioned by defendants in court, which can be highly traumatic for witnesses and victims.

Judges also warned that forcing people to go without lawyers in hearings takes up more court time, meaning that legal aid cuts end up costing the system more in the long term – reinforcing the research by Ipsos MORI.

The episode illustrated the gap between the MoJ’s predictions regarding the effects of the legal aid cuts and the reality. And in June came the starkest warning yet – this time from Parliament’s own justice select committee – that cuts to public funding are putting people’s human rights at risk. The MPs’ report painted a bleak picture of defence practitioners under unsustainable pressure, warning that as time wears on, the need to work long hours unpaid so that evidence is properly analysed will increasingly result in defendants not having their cases heard fairly. The committee chair, Conservative MP Bob Neill, said: “In criminal cases, there is a common law right to legal advice, and a right to legal representation under the European Convention on Human Rights. There is compelling evidence of the fragility of the criminal Bar and criminal defence solicitors' firms, which places these rights at risk – a risk which can no longer be ignored.”

A long-awaited government review into legal aid and the effects of cuts brought in by the Legal Aid Sentencing and Punishment of Offenders Act 2012 is underway, but few are optimistic that it will lead ministers to change course.

Steps forward for women

In 2018 women made up the majority (50.1%) of solicitors for the first time ever, while the Law Society inaugurated its fifth woman president, Christina Blacklaws. However, while women are represented in roughly equal numbers to men overall, this is not the case in senior roles.

When City firms – where partnerships are over 70% male on average – decided not to include firms’ partnerships in mandatory gender pay gap reporting for organisations with over 250 employees, there was an outcry. Although some firms defended the move by claiming that equity partners should not be considered the same as employees, many people shared the assessment of Inga Beale, chief executive of Lloyd’s of London, when she criticised the decision as a “carve out” for a male-dominated group of senior high earners. Some firms broke ranks and included partners in their gender pay gap reporting soon after, including magic circle giants Clifford Chance and Linklaters.

To mark International Women’s’ Day 2018, the Law Society released the largest ever international survey of women in the law, to which close to 8,000 people responded. Men were also invited to do the survey, 74% of whom gave the opinion that progress on gender equality had been achieved over the last five years – a view shared by only 48% of women respondents.

The survey also identified the four shared barriers to career progression that women lawyers face. Some 52% cited unconscious bias (only 11% said unconscious bias training is consistently carried out in their organisation), while 49% reported that an unacceptable work/life balance is demanded to reach senior levels. Close to half of women (46%) said that traditional networks and routes to promotion are male orientated, and 41% highlighted employers’ resistance to flexible working practices. Flexible working was named by 91% of respondents as being critical to improving diversity, but only 52% said their employer has a flexible working policy in place.

Meanwhile in April, the Fawcett Society made an unprecedented call for quotas to counteract overwhelming male dominance of legal, political, media and arts roles in the United Kingdom. Research by the women’s rights group found that women make up just 17% of Supreme Court justices, 22% of High Court judges, only 32% of MPs, 26% of peers in the House of Lords and just 26% of cabinet ministers. In business, a mere 6% of FTSE 100 chief executives are women, while in the charity sector this rises to a still unbalanced 28%.

Sam Smethers, the Fawcett Society’s chief executive, told The Guardian: “When we see this data brought together, it is both shocking and stark – despite some prominent women leaders, men haven’t let go of the reins of power and progress is painfully slow. Equality won’t happen on its own. We have to make it happen.”

Brexit

The year began with some welcome Brexit breathing space for the profession, as the government and European Union agreed that judgments in UK and EU courts will continue to be mutually recognised and enforced for a period after Britain ceases to be an EU member in March 2019.

The European Union abandoned its call for the Court of Justice of the European Union (CJEU) to have continued jurisdiction in the United Kingdom post Brexit, while in return Britain promised that UK courts will have “due regard” to relevant decisions made by the CJEU. There was also a promise from both sides to ensure that the rights of EU citizens are interpreted consistently.

In other Brexit-related news, the City continued to thrive throughout 2018, with the listings of financial services firms accounting for half the total proceeds raised on the London stock market this year. Despite gloomy predictions, London is continuing to thrive as a financial centre, which is good news for City lawyers. However, with the nature of the country’s exit still up in the air at time of writing, uncertainty – and widespread concern – about the ultimate consequences of Brexit remains.

Too many justice secretaries, too little time

In January David Gauke became the sixth MP to take up the role of justice secretary in as many years, replacing David Lidington after just six months as part of a cabinet reshuffle by Prime Minister Theresa May. Lidington is a key ally of May and moved up to a de facto deputy PM role when her previous right-hand man, Damian Green, was forced to resign as first secretary of state following multiple allegations of sexual harassment made against him by women colleagues and journalists.

Gauke is the first ever solicitor to become justice secretary and his appointment marks the end of a run of four consecutive non-lawyers to hold the post. Before going into politics he was a solicitor at Macfarlanes. He joined the majority of MPs with legal backgrounds in voting to remain in the European Union during the EU referendum.

However, the high turnover of justice secretaries in the last few years has been bad for the profession, as no one has been in post for long enough to get to grips with their brief and address some of the long-term problems that are damaging the justice system, such as the public funding crisis discussed above.

With May’s government bitterly divided over Brexit and her wafer-thin parliamentary majority reliant on the support of the Democratic Unionist Party following the net loss of 13 seats at the last general election, it remains to be seen whether Gauke will be in post long enough to make a mark. The next 12 months will be critical for him and his government.  

Mergers

There has been a much lower number of law firm mergers this year, in comparison to 2017. By far the biggest of the last 12 months was that of City firm Berwin Leighton Paisner and US-based Bryan Cave in April. Now operating under the name Bryan Cave Leighton Paisner, the merged firm has increased international reach with 32 offices in 11 countries, employing some 1,600 lawyers.

Partners and staff at sports specialist Couchmans joined Charles Russell Speechlys in January, creating a “new model for legal services in sport” offering “agile specialists with global reach”. Further afield, DLA Piper’s Chilean arm merged with Noguera, Larraín & Dulanto. The new offering, DLA Piper BAZ NLD comprises some 60 lawyers.

Goodbye LPC, hello SQE

In 2018 it was confirmed that the route to qualify as a solicitor will change, with a new Solicitors Qualifying Exam (SQE) set to replace the GDL and LPC in 2020 (although this could be delayed). However, the year began with widespread opposition to the Solicitors Regulation Authority’s (SRA) reforms.

As the profession’s top regulator, the Legal Services Board (LSB), considered its final decision on whether to allow the changes to go ahead over February and March, it came under pressure from City firms, law lecturers, the Law Society and even MPs, who all demanded that the SRA’s proposals be delayed or rejected outright. The chair of the parliament’s justice select committee, Conservative MP Bob Neill, wrote to the LSB to express “fears that the SQE framework in its current form would lead to England and Wales becoming the only jurisdiction that does not require substantive academic study of law as a precursor to qualifying as a lawyer”.

Meanwhile, the City of London Law Society (CLLS), which represents the interests of powerful City firms, said that plans for the SQE “neither demonstrated that the current system is so flawed it needs a complete overhaul nor that the new framework is superior”. The CLLS said the SRA was taking a risk “to embark on a qualification framework which has no parallel elsewhere and moves us further away from the requirements seen in other well-respected jurisdictions without demonstrative compensatory benefits […] We know of no other regulator in the UK or elsewhere reducing the practical relevance of the training and education which it is assessing as part of a proposed qualification. As such the SQE represents a step back and a missed opportunity to future-proof the profession”.

Nonetheless the changes were approved, and the SRA was able to spend the summer planning what the SQE itself will look like. In August, it was announced that Kaplan had been appointed to run the assessment following “a robust, competitive” process, but no news has been provided on how much students will be charged to take the two-stage exam, nor what fees will be set for new SQE-preparatory courses currently being developed by law schools. Meanwhile, universities such as Goldsmiths are launching SQE-friendly law degrees to prepare for life under the new system.

There are still crucial questions that need answering about SQE, so keep an eye on LCN for updates over the coming months.  

Talking points in the law

The legal profession has seen some important developments this year, summarised below.

CPS disclosure failings

Serious disclosure failures caused the collapse of 47 rape and sexual assault cases in the first six weeks of 2018 alone, but the true number of affected cases is likely to be far higher. The Crown Prosecution Service (CPS) failed to meet its obligation to share potential evidence with defence lawyers (sharing is required even in situations where this undermines the prosecution’s case) on dozens of occasions. Director of Public Prosecutions Alison Saunders told MPs that problems at the CPS were systemic and that high volumes of digital evidence, particularly on social media, present a huge challenge. The CPS has said that disclosing what evidence the prosecution is looking at to the defence at an earlier stage will bring improvement.

The London training contract bubble

Recent Law Society statistics show that over half (52%) of all training contract vacancies in England and Wales are based in London. Of the 5,719 training contracts that started nationwide in 2016-17, 1,923 were based in the City alone, where firms hire large trainee intakes, while a further 1,002 were in “the rest of London”.

Unlawful tribunal fees cost the government

Refunding unlawful charges that saw members of the public wrongly forced to pay £1,200 to take their cases to an employment tribunal could cost the Ministry of Justice as much as £33 million. The Supreme Court ruled that the charge was a barrier to justice and therefore unlawful in late 2017, but the government was still repaying claimants who were charged unfairly well into this year, the final bill for the ill-conceived policy continuing to rise.  

Important cases

The major court cases and inquiries of the year usually reflect key issues facing wider society. Here are some that made headlines earlier this year that you should know about.

The Grenfell Tower fire

The public inquiry into the fire which killed 72 people in Grenfell Tower on 14 June 2017 is ongoing. Lawyers representing the victims’ and their families protested at the government’s decision to appoint white, middle class retired judge Sir Martin Moore-Bick to lead the inquiry. They and the MP for Kensington, Emma Dent Coad, called for Moore-Bick to stand down, arguing that the hundreds of people bereaved and/or made homeless by the fire needed someone who could relate to their lives as well as look at the detail. The government defended Moore-Bick’s appointment and the inquiry began hearing evidence in June 2018. It aims to cover the immediate cause of the fire, the design and construction of Grenfell Tower, the scope of regulations and compliance, the response of firefighters, and the response of the government and the local council to the fire’s aftermath. It resumed in early September following a summer break.

Owens v Owens

In May the case of Tini Owens, who was denied a divorce by a judge on the grounds that her husband’s behaviour was not deemed ‘unreasonable’ enough for the purposes of the divorce petition, prompted widespread calls for the law to be changed to accommodate ‘no-fault’ divorces. Nigel Shepherd of the campaign group Resolution said: “Our current laws can often create unnecessary conflict in divorce, forcing many couples to blame each other when there is no real need – other than a legal requirement – to do so. This conflict is detrimental to the couples themselves, and, crucially, any children they may have. We want to see a system fit for the modern age, where separating couples are treated like responsible adults, and are allowed to resolve their differences as amicably as possible without having to sling mud at each other.”

Tommy Robinson behind bars

Earlier this year Stephen Yaxley-Lennon, the founder of far-right group The English Defence League otherwise known as Tommy Robinson, was sentenced to 13 months in prison for contempt of court. Robinson was arrested after broadcasting an hour-long video over Facebook from outside Leeds crown court, in which he allegedly made comments that risked causing a trial to collapse.

However, Robinson was bailed in August when a judge ruled that there had been technical flaws in the trial and sentencing process, which had been rushed. His case is now set to be reheard by a different judge.

The snooper’s charter

The government’s mass data surveillance legislation, set out in the Investigatory Powers Act, was found to be incompatible with EU law by the High Court in April. The legal challenge to the so-called “snooper’s charter” was brought by human rights organisation Liberty. The government has until November 2018 to rewrite its surveillance laws.

Legal aid restored for unaccompanied children

A judicial review brought by The Children’s Society led the government to U-turn on its decision to deny legal aid to unaccompanied migrant children in July. The government was forced to admit that its policy may have denied access to justice to 150,000 vulnerable children, and even put some at risk of exploitation. The Children’s Society, supported by other civil society organisations, conducted a five-year legal challenge on behalf of the separated and unaccompanied children, who have faced a punishing system of legal aid cuts and increasing Home Office fees since 2013. Some of the children deliberately denied legal aid by the Home Office have been through horrific ordeals, including being the victims of trafficking.

Cliff Richard v the BBC

Veteran singer Sir Cliff Richard won a landmark case against the BBC after the broadcaster filmed police searching his home without him having been charged or arrested. The police were investigating historical sexual abuse allegations but found no evidence with which they could charge Richard. The case established that individuals, including high-profile ones, have the right to privacy before they have been charged with a suspected crime. However, some in the media have defended the corporation, arguing that the ruling will have a chilling effect on journalists’ ability to accurately report criminal investigations.

Uber on probation in London

US taxi app Uber was granted a short-term licence to operate in London following a two-day hearing at Westminster Magistrates’ Court in June. Transport for London had refused to renew Uber’s license in September 2017, saying that it was not “fit and proper” to operate because of its gung-ho determination to grow at any cost – as evidenced by its woeful record on reporting criminal activity and scant regard for the safety of its passengers and drivers. Uber initially responded aggressively, but struck an apologetic tone during the hearing and promised that it has changed the way it operates. The company is now on probation, having been granted a 15-month licence to prove that it has taken concerns on board. 

What’s ahead?

It seems that all roads lead to Brexit and the government is occupied with little else. The clock is ticking toward the deadline by which the United Kingdom and European Union need to agree a deal before the country crashes out with no arrangements in place, leading to chaos in supply chains for food, medicine and more. And with huge uncertainty remaining about what form Brexit will take and what the ultimate consequences will be, lawyers everywhere from City firms to high street immigration practices will be looking to the government for news in the coming months.

Meanwhile, aspiring solicitors will be keen to learn more details about the upcoming changes to the qualification process set to be introduced by the SQE. For information on this and every other issue that might impact on your career journey, keep up to date with LCN as we head toward 2019.

Josh Richman is the senior editor of LawCareers.Net.