LRB 11 2005 02 Item 11
REPORT ON THE WORK OF THE COMMITTEES
REPORTING TO THE LAW REFORM BOARD
Attached is a note outlining the main activities of the committees reporting to the Law
The Board is asked to note the paper.
Financial and resourcing implications
There are no financial and resourcing implications.
Equality and Diversity implications
Freedom of Information
This paper is public.
This paper has been prepared directly for the Law Reform Board.
Director of Representation and Law Reform Evlynne Gilvarry
Author of Report Vicki Chapman
Date of Report 15 November 2005
Report on the work of the Committees
reporting to the Law Reform Board
1. All the committees are engaged in a significant level of routine work, such as
responding to consultation papers or on-going negotiations with other bodies. This
paper sets out the main activities which the committees are currently engaged in.
2. Civil Litigation Committee
2.1 Civil Litigation Section - The committee is continuing to oversee the development of
this section and members of the committee sit on the Executive Board for the Section,
the membership of which currently exceeds 800.
2.2 EU Civil Justice Day – This event was held on 17th October 2005 in conjunction
with the Family Law Committee and to coincide with the UK Presidency of the
EU. The event was well attended and some very good feedback was received.
2.3 Work of the Reference Groups – The Intellectual Property Working Party is
continuing to work upon the registration of trademark attorneys. The Cross
Border Reference Group was liaising in respect of the proposed European
Small Claims Regulations.
2.4 Civil Justice Council – paper “Improved Access to Justice – Funding Options &
Proportionate Costs”. The Cost Reference Group met on the 15 November to
consider a response to this paper. The Group will be seeking approval from the
Civil Litigation Committee and the Law Reform Board on what response to
2.5 Case Interventions – The Law Society has had recent successes in the cases it
has intervened in. The House of Lords in Campbell v MGN agreed that CFAs
were open to everyone, and a person of means was not precluded from
choosing this funding option. The Court of Appeal in Garbutt v Edwards agreed
that appropriate disciplinary measures were available via the Law Society
Council. This case indicates a positive start for the new CFA regime because it
held that a breach of the Law Society rules does not make the agreement
unenforceable entirely. The Society’s public position is that if a relevant breach
has occurred then the solicitor should be called to account and a reasonable
and proportionate sanction should apply.
2.6 CFAs – The new CFA regime began 1 November this year. On this date the
regulations were revoked and the Law Society became the primary regulator for
this area. The transition is going reasonably smoothly, with information
available on the Law Society’s website. The new standard CFA model was
published in the August edition of the Litigation Funding magazine (issue 38).
Further articles will be in the Gazette, Litigation Funding and Litigation Focus.
The Cost Reference Group has considered the viability of releasing additional
CFA models, namely the CFA ‘Lite’, however is not prepared to release any
more at this stage. The Group has also considered questions raised regarding
the new standard model CFA and is looking at whether amendments are
necessary. The form of explanation that should accompany the regime has also
been addressed. The Group decided that the existing “Payment by Results”
booklet is not appropriate to release under the new regime. The booklet needs
to be updated, and this is likely to be done when the new Law Society’s Code of
Conduct comes into force in 2006. Until then, guidance will be provided on the
website and through articles in appropriate legal publications.
2.7 Guideline Hourly Rates – The committee is closely monitoring the move from rates
set for individual courts to the banding of groups of courts as there are concerns that
some of the banding may be anomalous.
2.8 Contracts of Insurance – A promising discussion was held with the FSA on the 6
October regarding the practice of solicitors agreeing to indemnify their clients
in the event that they are required to pay their opponent’s costs. We maintain
our view that this is a practice that solicitors should be able to undertake. The
FSA has indicated that if their overall objective of consumer protection is met
then they are willing to look at alternative practices. Discussion with the FSA on
this issue will continue.
The Society has been alerted to a potential problem for solicitors who, in connection
with CAS, agree to indemnify their clients in the event that they are required to pay
their opponent's costs. The FSA has issued a policy document claiming that such an
agreement would be construed as a "contract of insurance" and that solicitors
entering into these agreements would be regarded as effecting and carrying out a
contract of insurance as principal. From January 2005, this is a regulated activity and
can only be carried on by a person authorised by the FSA to carry on such business.
Solicitors would not be able to obtain such authorisation as they would not be able to
satisfy the capital adequacy requirements. The Law Society has written to the FSA
challenging the FSAs interpretation on both legal and policy grounds. The FSA has
replied with further queries to which the LW Society has replied. We now await a
further reply, at which point we will make a strategic decision on how to take this
2.9 Small Claims – The committee recently assisted with the response to the EU
proposed Small Claims Regulation Consultation. As a result of this, evidence
was prepared and placed before the House of Lords EU Committee which was
conducting an enquiry into the proposed Small Claims Regulations. The Chair
of the committee, Georgina Squire, attended the committee hearing to give oral
As part of its process of reviewing the claims process generally the DCA is
looking into domestic small claims. A House of Commons Select Committee
recently conducted an enquiry into domestic small claims procedures. The
committee assisted with preparation of the evidence to be considered by the
committee and the Chair of the committee attended the hearing to give oral
2.10 Multi-Track Code – The Law Society has recently been made aware of discussions
having taken place between the forum of insurance lawyers (FOIL), the Association of
Personal Injury Lawyers (APIL) and the Motor Accidents Solicitors Society (MASS).
As a result of which an agreed specification for discussions to develop a multi-track
code had been agreed. It is understood the Law Society had not been aware of these
discussions. The committee has now made representations to those concerned as a
result of which the Law Society will now be included in further liaison meetings and
discussions. So far attempts to meet with APIL and FOIL have met without
success. The committee are extremely concerned with the multi-track code
proposals and the Law Society is liaising with the DCA which supports the
Society’s view that it must be involved in negotiations in this respect. The
committee will continue to monitor developments.
2.11 European Issues –The committee continues to monitor the developments of the law in
so far as it relates to cross border disputes and other related matters and recently
assisted with the response to the EU’s proposals for a European small claims
2.12 Bar Contract – Negotiations with the Bar Council concerning a proposal to
introduce a standard form of contract are continuing and it appears close to
being finalised. The committee has been actively engaged in giving its
comments on the proposal so as to assist with negotiations.
2.13 Pre-action Protocols – The CJC is continuing its consideration of reviewing pre-
action protocols. Members of the committee are preparing draft proposals for
consideration at the next meeting with the CJC.
2.14 Electronic File and Serve – The DCA and HMCS are currently undertaking a
feasibility study into e-file and serve in the civil courts. The Law Society is
represented on the feasibility study and the committee are assisting with this
by way of giving advice and guidance.
2.15 Consultations - The committee are currently engaged in advising on the
responses to the following consultations:-
Focussing judicial resources appropriately
Proposed changes to civil appeal rules
Civil and Family court fee increases.
2.16 Parliamentary Bills – The committee is currently assisting the Society with its
work on lobbying and proposing amendments as necessary to:-
The NHS Redress Bill
The Compensation Bill.
3. Company Law Committee
3.1 Company Law Reform Bill – The Bill was finally published on 3rd November: 885
clauses 508 pages the committee will be providing materials for peers and
drafting amendments while continuing to liaise with the DTI to improve the Bill.
3.2 Shareholders’ Rights – the committee responded to two consultations from the
European Commission on Fostering an Appropriate Regime for Shareholders’ Rights
seeking to divert the Commission away from introducing a Directive and towards
other non-legislative measures. Officials from the Commission came over to meet the
DTI and other interested parties at a meeting hosted by the Society on 4 th March. The
Commission is now considering the nature at the legal instrument to be
adopted to take forward the proposals.
3.3 Financial Services and Markets Act 2000 – the committee submitted a memorandum
in response to the Treasury’s two year review consultation. It reviewed the statement
of the Government’s conclusions on proposed changes to secondary legislation
published after the consultation and provided detailed comments on revised drafts of
secondary legislation before they were laid.
3.4 Fair Value Directive – the committee has been lobbying the European Commission to
clarify uncertainty resulting from the introduction of International Accounting
Standards for public companies from 1st January 2005 as to whether gains and losses
are to be treated as realised or unrealised for the purposes of the rules on the
distribution of profits. The issue was discussed on 20 May by the Commission’s
Accounting Regulations Committee, revealing disagreement on the issue between
Member States, and again on 8 November.
3.5 Vanessa Knapp, the outgoing Chair of the committee, has been appointed as a UK
representative on the European Commission’s advisory group on corporate
governance and company law. She is also the UK representative on the CCBE
Company Law Committee.
3.6 Company Charges – the Company Law Committee has provided substantial
responses to two Law Commission consultations on the reform of company security
interests. The Commission’s final report recommends a move to electronic notice
filing by lenders, which the committee in principle supports. The DTI has consulted
on the economic impact of the recommendations and a meeting has been held with
the DTI to explain the committee’s views. The Company Law Reform Bill has only
the one reference to charges – deletion of the abortive regime in the Companies
Act 1989. Presumably the DTI will address charges at a later date using the
new powers to amend, restate or codify company law by statututory instrument.
4. Criminal Law Committee Comment [a1]: Waiting for Janet Arkinstall
4.1 Parliamentary work – Members of the committee continue to be involved with the
campaign to oppose government plans to remove the right to trial by jury in complex
fraud cases, with JUSTICE and the Bar Council. The Statutory Instrument has
been laid before Parliament, and we plan to focus our opposition on the House
of Lords. The Police Station Practice Working Group finalised its response to
the new PACE Code on arrest.
4.2 A Possible Protocol on the Relationship between Solicitors and Judges – As a result
of the increasing judicial management of criminal case progression, arising from the
Effective Trial Management Programme, the Criminal Case Management Framework,
and the Criminal Procedure Rules the committee decided it would be desirable to
develop a protocol with the judiciary that addresses the tension between a solicitor’s
duty to his or her client, in particular confidentiality, and the solicitor’s duty to the
court. Discussions with members of the judiciary are in progress and the Chair
of the committee has sent a paper to Thomas LJ, who has referred the matter to
his judicial colleagues.
4.3 Engaging the Defence – The National Criminal Justice Board approved the final
paper to Local Criminal Justice Boards (LCJBs) encouraging defence
practitioner engagement in local criminal justice systems. Significantly it was
accepted that solicitors should be paid to attend meetings. The Law Society
expressed concern that the limited amount of funding may negatively impact on
their usefulness as an effective mechanism of defence practitioner
engagement. The Attorney General has personally been very supportive of this
4.4 Consultations – Members of the committee are currently considering consultations in
relation to a Sentencing Guidelines Panel consultation on guidelines for assault and
other offences against the person, and an Office for Criminal Justice Reform
consultation on ‘Hearing the Relatives of Murder and Manslaughter Victims’, and a
new Criminal Procedure Rule on expert witnesses. Following meetings with
representatives of the DCA a set of revised draft regulations on the unfreezing
of a respondent’s assets to pay legal fees in respect of civil confiscation
applications under the Proceeds of Crime Act 2002 has been published.
4.5 Guidance for Solicitors Serving on Juries – The Guidance has been published in
the Criminal Practitioners Newsletter, posted on the Website, and was the
subject of an article in the Gazette.
5. Employment Law Committee
5.1 Employment Act 2002 – Parts 2 and 3 of the Act (tribunal reform and dispute
resolution) are now fully in force. Use of the new tribunal forms will be mandatory
from 1 October 2005. The committee was consulted about a revision designed to
make them more user friendly, and made various suggestions while reiterating its
objection to mandatory forms. The forms are still far from satisfactory. The
committee is going to monitor the operation of the new tribunal and dispute resolution
regime very closely during the coming year, as it fears that the overall effect of the
changes will be to impede access to tribunals. A DTI review will take place at the end
of 2006. Serious problems in practice with the official forms have been drawn
to the policy adviser’s attention by practitioners and will be discussed by the
committee at its meeting on 20 November.
5.2 The committee is able to keep abreast of developments in this area through the
Chair’s attendance, on behalf of the Society, at meetings of the national employment
tribunal user group, and through frequent contact with Acas, ELA and regional
employment tribunal user groups.
5.3 Following its annual meeting for solicitor members of employment tribunal regional
user groups held on 19 April, the committee has sent the Chief Executive of the ETS
(Employment Tribunal Service) outline guidance for unrepresented parties at
telephone hearings. This was in response to the Chief Executive’s request for
practical suggestions for improving guidance for users.
5.4 EU Acquired Rights directive – The committee has continued to work with the
Brussels office, most recently on the EU Commission’s review of the Acquired Rights
directive (the directive which forms the basis of TUPE). The main focus of the
Commission’s review is the question of cross-border transfers. A member of the
committee and the policy adviser travelled to Brussels for a meeting with the
responsible Commission officials. The officials used the occasion to request an
update on TUPE legislation in the UK, as the Government has not kept the
Commission fully informed. This work is continuing.
5.5 Age discrimination – The committee has responded to Equality and Diversity:
Coming of Age, the DTI consultation on draft Employment Equality (Age) Regulations
which will come into force on 1 October 2006. These regulations will conclude
implementation of the EU Employment Equality Framework .
The committee’s response is especially critical of the employer’s duty to
consider an employee’s request to continue working after 65, warning that it is
ill-thought out and likely to be unworkable in practice. Two press releases were
issued – to the regional press and the legal press – and the committee’s
warning was picked up by the Financial Times and several regional
newspapers. The policy adviser spoke about the regulations at the annual
conference of TAEN (the Third Age Employment Network).
6. EU Committee
6.1 Contract Law – Law Society experts have been nominated to the European
Commission’s expert panel to discuss modernisation of contract law. Meetings of the
stakeholder group have begun with different nominated experts attending each
session. Written Evidence was submitted to the House of Lords Select Committee on
European Union for their inquiry on the modernisation of European Contract Law.
Member of the Law Society’s contract law working group attended a high level UK
Presidency conference in London at the end of September.
6.2 Better law making - the committee has produced draft papers setting out access to
justice considerations which might be taken into account by EU legislators in drafting
and implementing new legislation. The aim of access to justice impact assessments,
both in the EU and domestically, is to ensure that when introducing new or revising
provisions, policy-makers and legislators include consideration of matters such as the
enforceability of the measure and whether existing provision for access to legal
advice and redress will be adequate. The work of the committee will be closely linked
to the work on better law making taking place domestically.
The committee has prepared a Charter for Better Law Making in the European
Union. Commissioner McCreevy, Commissioner for Internal Market, attended a
breakfast meeting in London on November 14th where a discussion took place
on Better Regulation in general and on the Law Society’s EU Better Law Making
6.3 The EU Committee submitted a response to the European Commission’s State Aid
Action Plan, welcoming efforts by the Commission to implement the Commission’s
better regulation agenda in this field.
6.4 EU Civil Justice Day - The EU Committee, jointly with the Family Law Committee
and Civil Litigation Committee held a conference to mark "European Day of
Civil Justice" on October 17th. The conference was designed to raise awareness
amongst the legal profession, and interested parties, as to the extent and scope
of European law in the area of judicial co-operation in civil matters, including
family law. The event was intended to make European law more relevant and
accessible to practitioners and their clients. The conference was split into two
events: “Introduction to EU family law - how EU legislation impacts on domestic
family law”, and "Cross-Border Dispute Resolution: How to…?" examining the
development of European Civil Procedure Rules and the EU tools available in
cross-border litigation. Baroness Ashton, Lord Justice Thorpe and Diana Wallis
MEP were the keynote speakers. 120 participants attended the morning session
and 170 in the afternoon.
6.5 House of Lords, Select Committee on European Union - The House of Lords
Select Committee on European Union, requested that the EU Committee
regularly submit a list of key items of debate and legislative items that they
consider the Select Committee should discuss. They are seeking to manage
their own work agenda and determine their priorities in terms of parliamentary
scrutiny of EU measures by engaging with the stakeholders and interested
7. Family Law Committee
7.1 Family Advice and Information Services (FAInS) - This signposting scheme, which is
being piloted by the LSC, is of particular importance because the LSC is intending to
use the FAInS solicitors to pilot all future schemes relating to family law and is
currently consulting on the future of publicly funded family work. The Society meets
regularly with the research team and sits on the Consultative Committee.
7.2 Family Law Protocol – The first edition is currently being revised. Final amendments
have been made to the Protocol and the final version of the Protocol was made
available for proof reading in mid November. It is anticipated that the Protocol
will be printed prior to Christmas for distribution in January.
7.3 Cohabitation – The committee is working to get changes in the law relating to
unregistered cohabitants on to the Government’s agenda. The Society is working
jointly with the Resolution to raise the issue publicly and attempt to influence
Government thinking on the issue of unmarried, unregistered cohabitants. We have,
jointly with Resolution, drafted a Bill which contains most of our proposals and will
use this jointly with Resolution as a vehicle for raising awareness of current problems
for unmarried or unregistered cohabitants. The Law Commission has begun work
on this area of law and will publish a consultation paper in April 2005 with a
view to reporting on the issue in approximately July 2007. At their suggestion we
will be advising on the issue.
7.4 Ancillary Relief – As part of the committee’s paper on ancillary relief they proposed
changes to the forms used in the process, particularly Form E. The Government has
now implemented amendments to the Form E which will take effect on 5
December 2005. The amendments largely reflect the recommendations made in
the committee’s report. An article by the Chair of the committee about these
amendments will be placed in the Gazette.
7.5 Domestic Abuse –The Government has numerous initiatives in the field of domestic
abuse, overseen by a Ministerial group. The committee has concerns about certain of
the proposals within new legislation in this area. We will be seeking to discover the
experiences of solicitors after the Act comes into effect to see whether it does offer
greater safety to the victims of abuse. We are members of the DCA steering group
on integrated domestic violence courts and are involved with the pilot project in
7.6 Reciprocal enforcement of ancillary relief orders within and outside the United
Kingdom – The Society and the Law Societies of Scotland and Northern Ireland
have agreed to meet to consider whether a scheme for mutual enforcement can
be agreed. If this project proves successful it should provide a mechanism for
similar joint projects and will in any event give opportunities for lawyers from
different jurisdictions to learn from each other’s practice. Work done in this
area has proved useful in responding to EU consultations. Meetings have
commenced and are expected to continue.
7.7 Unified Civil and Family Courts – The Government has announced proposals to
unify civil and family court jurisdictions following its consultation on this issue.
The committee will be working with Government to implement these changes.
7.8 Family Court Fees – Her Majesty’s Court Service proposes to increase civil and
family court fees in order to meet its cost recovery targets. Family court fees in
particular will increase considerably under the proposal. The committee is
currently considering the consultation paper in so far as it relates to family
7.9 Forced Marriage – A joint consultation paper issued jointly by The Home Office
and Foreign & Commonwealth Office seeks views on whether a specific
criminal offence would help combat forced marriage. The committee is
currently considering the consultation paper.
7.10 Client care – The Law Society is currently revising its guidance on Rule 15
regarding client care, and aims to include sector specific guidance within the
new client care document. The committee has been asked to recommend
specific client care guidance for family law practitioners.
7.11 Delay in family courts - Earlier this year a Faster Family Justice e-campaign
was undertaken. The responses received to date indicate that the vast majority
of delays occur at the Principal Registry of the Family Division. The committee
is considering a second e-campaign aimed specifically at family law
practitioners based in London. If responses are sufficiently numerous a
request that further resources be put into this area of work will be made to
Government and the judiciary.
7.12 Transparency in family courts – Family Justice Minister Baroness Ashton
recently announced that there will be a consultation on the transparency of
family courts next spring. The Society has been invited to a meeting of key
stakeholders convened by HMCS for preliminary discussions on this issue.
7.13 Judicial Resources – The Department for Constitutional Affairs has issued a
consultation paper on focusing judicial resources which the committee is
currently considering in so far as it relates to family work.
7.14 Civil Partnerships – The Civil Partnerships Act 2004, which provides for the civil
registration of same sex partnerships, comes into effect on 15 December 2005.
We are working with the Press Office regarding an information campaign about
the likely role of lawyers.
7.15 Private law children developments – Law Society amendments including around
resourcing of facilitating contact with children were tabled for the Lords Committee
Stage in October. Lords Report Stage will be monitored and further lobbying will
be undertaken in the Commons next year.
7.16 Adoption and Children Act 2002 - Responses have been submitted on the various
packages of regulations and guidance to implement this Act at the end of this year,
including on the draft Court Rules for Domestic Placement and Adoption. The Society
is participating in the Civil and Family Procedure Rules Harmonisation Working Party
dealing first with the Adoption Rules. The Society is running joint training events on
the full implementation of the Act with Resolution and the Association of Lawyers for
Children on 28 October and 25 November.
7.17 Review of family justice system – child care proceedings - The DCA and DfES are
conducting this review further to the Fundamental Legal Aid Review. The priority
must be to protect children whilst ensuring that the system is efficient and uses public
funds effectively. The Society is a member of the Advisory Group to the review
and participated in a recent Stakeholder event. Recommendations will be made
by the Review Team at the end of January. The Society’s proposals on better
ways of working and a communication to family and children lawyers is being
7.18 CAFCASS – The Society will be responding to CAFCASS consultations on
practice guidance for guardians appointing a solicitor and ‘Every Day Matters’
on a new professional and organisational strategy.
7.19 Children Panel Review – The Children Law Sub-Committee is working closely
with Professional Accreditation to revise the competence standards.
8. Housing Law Committee
8.1 Rent Arrears Possession Claims Pre-Action Protocol - We are a member of the DCA’s
Housing Dispute Resolution Working Party. The Housing Law Committee is liaising
with the Civil Litigation Committee on this issue. The Civil Justice Council have
produced a draft Protocol which will be available for public consultation in June. We
assisted the CJC in producing their draft Protocol through our involvement in the
DCA’s working party. Members of the Housing Committee have met the Housing
Committee of the Civil Justice Committee and provided their detailed comments on
the draft Protocol. These comments are to help the CJC produce a final draft for the
public consultation in June. The CJC published the draft Protocol for consultation and
we have submitted our Response. Our Response supports the CJC’s proposal for a
rent arrears protocol. We have however advised that further development work be
carried out in the form of a working group comprises landlord and tenant
representatives. We consulted with the National Housing Federation and the Local
Government Association before forming this view. We await the outcome of the
8.2 Statutory Tenancy Deposit Scheme – The Housing Act 2004, which includes
legislation enacting the scheme, has received the Royal Assent. We are now involved
in developing an authorised scheme for solicitors. The Disputes Service provide a
voluntary dispute scheme for letting agents and surveyors and will be submitting a bid
to the ODPM to run a deposit scheme for professionals. We are negotiating with the
Disputes Service in relation to the Law Society’s involvement in this bid and the
services it may provide solicitors in the future.
8.3 Housing Dispute Resolution - The Law Commission has recently announced the start
of a major project investigating the methods by which such disputes should be
resolved. It is expected to consider a shift away from the county court. We will be
participating and contributing to this project. The DCA have formed a working party to
investigate the resolution of housing disputes we have been invited to participate.
Wendy Backhouse Interim Chair of the Housing Law Committee attended a Law
Commission seminar on this issue. She chaired a workshop there. Helen Carr of the
Law Commission discussed the project at the March meeting of the Housing
Committee. We await the Law Commission’s interim report and expect it to be
published in the late autumn. The Working Party is now working on the development
of duty advice possession schemes in the county court and community justice
schemes. We have had a meeting with the LSC to provide them with information
to help them develop policy in this area. They hope that almost every county
court will have a scheme within two years.
8.4 Anti-Social Behaviour - We have submitted evidence to the House of Commons
Home Affairs Committee’s Inquiry on this matter. We attended a conference on this
issue at Oxford Brookes University. We assisted the Crime and Society Foundation
in preparing their oral evidence for the Home Affairs Committee’s inquiry. We held a
seminar in Manchester to seek the views of solicitors on the implementation of anti
social behaviour legislation in conjunction with the criminal law policy team. There
were four speakers: a member of the CPS, a local authority housing lawyer, a criminal
defence lawyer, and a tenants’ lawyer. A similar seminar has been held in
Birmingham. The seminars have been well attended and similar seminars are
planned for Cardiff, and London.
8.5 Licensing of Houses in Multiple Occupation – We have responded in detail to two
ODPM consultations on the implementation of licensing. We attended the Local
Government Association’s Housing Act 2004 Conference. We continue to respond to
ODPM consultations in respect of implementation of the Act.
8.6 Housing Law Conference December 2005 - With the Housing Law Practitioners
Association we are organising the annual housing law conference. Kevin Martin is to
be the keynote speaker this year.
8.7 DCA Working Party on Housing Dispute Resolution - Our involvement in the working
party is continuing. The working party is to begin discussions concerning the
Introduction of a Duty Advice Scheme for Possession Hearings at County Courts. It
will also discuss housing disputes and small claims. We attended a meeting of the
Working Party to discuss the roll out of duty advice schemes by the Legal
Services Commission across the country and the applicability of community
justice centres to housing disputes.
8.8 Department of Work and Pensions, Working Party on New Duties for
Residential Landlords under the Disability Discrimination Act – The DWP are
developing a new duty requiring landlords to make reasonable adjustments for
disabled people in common parts. We a member of the Working Party and have
contributed to the development of this policy.
8.9 Social Housing Law Association – This is a new practitioners organisation
representing lawyers acting for social landlords. We have supported the
development of SHLA.
9. Immigration Law Committee
9.1 Government 5 year strategy – The Government has announced significant changes
to the immigration and asylum systems.
9.1.1 Immigration, Nationality and Asylum Bill - Following on from proposals made in the
strategy the Government has published the Immigration, Nationality and Asylum Bill.
This proposes abolishing certain appeals rights and restricting others. The Society
submitted amendments to the Bill for the committee stage at the House of Commons
and held a successful briefing meeting for MPs.
9.1.2 Making Migration Work - The committee responded to the separate consultation the
Government has issued regarding the new points-based migration scheme also
trailed in the strategy.
9.1.3 New Asylum Model - The Society has been closely following developments in the
asylum determination process set out in the strategy. Law Society staff held a useful
meeting with Tony McNulty, Minister for Immigration, at the Labour Party Conference,
to discuss these issues. The Society is also active in the Home Office external
stakeholder group which meets to consider the implications of the new system.
9.2 Seminars on immigration – A seminar on the Government’s five year strategy has
been held in London. This has now been repeated in Leeds and Birmingham.
9.3 EU Issues – The committee has considered new EU rules on return, removal, use of
coercive measures, temporary custody and re-entry of illegally staying third country
nationals and will be submitting their comments.
10. International Human Rights Committee
10.1 Interventions – Since the last report we have sent letters of intervention on behalf of
legal professionals in China, Ethiopia, Guatemala, Iran, Iraq, Nepal, the Russian
Federation, Sudan, Syria and Tunisia. Letters concerning capital cases have been
sent to the authorities in China, Iran, USA (Missouri, Ohio, Texas and Virginia). All
appeals can be accessed on the website at
10.2 Graham Turnbull Essay Competition 2005/2006 - Is torture ever justified? This
round of the competition has now been launched.
10.3 Evening Event, 1 December 2005 - “The rules of the game have now changed
…” Professor Francoise Hampson, University of Essex; Jane Winter, Director
British Irish Rights Watch; and Clive Stafford Smith, Legal Director, Reprieve,
have agreed to speak.
10.4 Intervention in the House of Lords appeal (on the admissibility of evidence
obtained under torture – A and Ors v SSHO). We sent an observer to the
hearing which took place from 17 to 20 October. The ruling is expected in
10.5 Trial observation: IHRC members Tony Fisher and Anand Doobay will attend
the Crawle trial in Jamaica from 14 to 25 November. The trial is against six
policemen accused of murdering four civilians in Crawle, Clarendon in May
10.6 A Solicitor’s Guide to the International Criminal Court - researched and written
by IHRC members Anand Doobay and Kay Everett, is about to go to print.
11. Mental Health & Disability Committee
11.1 The Mental Capacity Act 2005 – The committee is actively involved in the
implementation of the Act and members of the committee attend the Mental Capacity
Implementation Group which has been set up by the DCA. The committee has
contributed to the revision of the draft Code of Practice and also responded to
the consultations on the approach to be taken in light of the ‘Bournewood’
judgment and the implementation of the Mental Capacity Advocacy Service.
11.2 Reform of the Mental Health Act – Despite the highly critical report of the Joint
Committee on the Draft Mental Health Bill, the Government has announced that it
intends to push ahead with introducing an amended version in this session of
Parliament. Members of the committee have been involved in meetings with the
Department of Health Bill Team on a number of topics including: the conditions for
compulsion, the overlap with the Mental Capacity Act, the nominated person and
offenders. The committee has also been involved in the Tribunal
Implementation Project which is looking at how the new Mental Health Tribunal
system can be implemented. The Law Society is an associate member of the
Mental Health Alliance and has been playing a leading role in the development
of Alliance policy. The committee has also been involved in attended briefing
meetings with MPs and journalists in anticipation of the Bill being introduced to
11.3 The Public Guardianship Office – a Joint Liaison Working Party of the Law Society,
the PGO and Court of Protection continues to meet every 4 months to discuss
complaints about the service (next meeting is November 2005). Committee members
also attend the Consultative and Professionals Receivers Forum of the PGO.
11.4 Disability Discrimination Law – The committee has responded to the consultations
on guidance on the new definition of disability introduced by the Disability
Discrimination Act 2005 and the revised Part 3 Disability Discrimination Act
Codes of Practice. The committee also produced written evidence for the
Special Educational Needs Commission established by the Conservative Party
and the House of Commons Education and Skills Committee’s investigation
into special educational needs.
12. Money Laundering Task Force
12.1 Bowman v Fels - The judgment in Bowman v Fels was handed down on 8 March
2005. It was a significant success in reducing the reporting burden for litigators,
including solicitors conducting ancillary relief work, which previously accounted for
80% of the reports made to NCIS by the legal profession. Guidance on the
implications of the case for those conducting litigation, and other work such as
Alternative Dispute Resolution, was issued shortly after the judgment was delivered,
and it has recently been extended to include comprehensive guidance for solicitors
conducting transactional work. Copies of all of the Law Society money laundering
has been sent to the Asset Recovery Agency (ARA), CICFA, Serious Fraud Office,
HM Revenue and Customs, Crown Prosecution Service and ACPO. Law Society staff
have also delivered training to National Criminal Intelligence Service (NCIS) staff
about the effect of the judgment. This liaison has been deemed necessary because of
the new robust approach being taken to the exemption to the tipping off offences for
professional legal advisers, and the Law Society guidance that solicitors rely upon
this exemption to properly deal with the issue of legal professional privilege. The draft
sector specific guidance is being reviewed in the light of the judgment.
12.2 Confidentiality of Suspicious Activity Reports - A continuing area of concern for
solicitors, and others, is whether the reports made to the National Criminal
Intelligence Service will remain confidential. In extreme situations these concerns
relate to physical danger, but there are also more general concerns about commercial
and reputational damage, especially for those whose businesses are in rural areas.
Guidance on this subject for law enforcement and prosecuting agencies is at an
advanced stage of development. However, there is a consensus amongst those
representing businesses and professionals in the reporting community that the
current proposals have not gone far enough to lessen the gap between the
protection afforded to voluntarily informants, and those required to make
money laundering reports under POCA. The Task Force, and others have taken
a final opportunity to make representations that the maximum protection and
assurance possible should be provided.
12.3 International Monetary Fund - The Law Society has been in liaison with the IMF about
a project to ascertain the extent of reporting obligations on lawyers in countries where
there are such obligations. The proposed project would entail a survey of regulatory
bodies and Financial Intelligence Units, and the publication of results. The Law
Society may host a conference dealing with the issues in the survey. The Institute of
Chartered Accountants of England and Wales and the Corporation of London
recently presented the results of their survey about the costs, benefits, and
perceptions of the anti-money laundering requirements. A number of business
and professionals were surveyed, including a number of solicitors. The results
of the survey confirmed that there is a wide spread perception that the costs of
anti money laundering compliance are not reflected in tangible or proportionate
benefits to the fight against money laundering or against terrorist financing.
This supports the need for greater feedback from the law enforcement agencies
about outputs achieved from money laundering reports. Another recent piece
of research commissioned by the Association of Chief Police officers also
indicates that better feedback is a vital development, and that initiative is now
being taken forward by the Serious and Organised Crime Agency ( see below).
12.4 Serious Organised Crime and Police Act – The Serious Organised Crime and Police
Act (SOCPA) amended sections of the Proceeds of Crime Act 2002. Some of the
sections of SOCPA referring to money laundering came into force on 1st July. Of most
interest to the profession is an amendment secured by the Society which permits a
solicitor to seek advice from the firm’s Money Laundering Reporting Officer (MLRO)
without the MLRO being obliged to make a report to the authorities. This amendment
was a direct result of the Law Society lobbying. A further change which will be of
considerable importance to solicitors concerns the definition of criminal conduct under
POCA. The amendment makes local law in the country in which the activity occurred
relevant, save for a list of offences, prescribed by the Home Secretary which will be
considered illegal regardless of the law of the jurisdiction where the offence occurred.
SOCA has been conducting workshops with representatives from various parts
of the reporting community to assess how best to achieve co-operation and
mutual understanding. The workshop for solicitors will take place on 21
November 2005 and SOCA will lead discussion on current views, the
aspirations of solicitors, and solicitors’ suggestions for future improvement.
12.5 Money Laundering Reporting Officers Group – The Law Society’s City of London
MLRO group continues to work on projects of interest and concern to their particular
areas of practice, e.g. securing amendment to identification certificates suggested for
completion by solicitors’ by the Bar Council and company formation agents, and in
relation to a recent consultation about changes to the money laundering guidance
issued by the Joint Money Laundering Steering Group (JMSLG) for the financial
services industry, and in relation to the Financial Services Authorities FSA)
consultation about changes to their anti-money laundering requirements, which apply
to some of the member firms and/or their clients (see below). Most recently the
Head of ARA gave a presentation to the group, and an invitation was extended by
ARA to the Law Society to input in the training materials for Financial Investigators
who receive money laundering reports from NCIS, who are the personnel who deal
with issues such as appropriate consent. A number of regional MLRO’s groups
continue to meet a number of times per year, and an internal meeting will take place
during October to discuss issues relating to the future of these groups. The level of
current membership of these groups reflects the continuing concern of the profession,
and a receptiveness to engage both with the Law Society and with other solicitor
MLRO’s to assist mutual support and learning.
Work has started on a project to maximise our support to MLROs and all solicitors
with an interest in money laundering news and legislative developments, by creating
an e-newsletter and supplementing the reference material currently available on the
Law Society’s website. It is hoped that as a result of this work, solicitors will be able to
track the Law Society’s law reform work in this area, contribute more efficiently to
consultations and campaigns and obtain anti money laundering information focused
on the profession. Most importantly solicitors who register with this service, will be
able to receive updated Law Society Guidance to their PC’s as soon as it is available.
12.6 Banks reporting solicitors - There has been a concern expressed about whether
banks are reporting solicitors to NCIS because of cash deposits into solicitors bank
accounts, which solicitors cannot control and which are often in contravention of
financial limits placed on the acceptance of cash by solicitors’ offices. However, NCIS
have recently clarified that reports of this nature are actually very rare, and this is
useful comfort to disseminate to the profession.
12.7 Financial sector - The JMLSG is undertaking a major review of its anti money
laundering guidance for the financial sector. The Task Force submitted
detailed comments, concentrating upon interpretation of the money laundering
offences in POCA. This is important work given that the JMLSG intends to
apply for formal HM Treasury approval of its guidance under POCA. In general
though the Task Force supports the “risk based “approach proposed, as this
ensures greatest flexibility and targeting of resources. The FSA’s recent
consultation about lifting their additional tier of requirements is also welcomed
for the same reasons.
12.8 Legal Practice Course training - Following a successful series of introductory money
laundering courses provided by Professional Ethics staff for LPC students during the
academic year 2004-2005, further sessions are being arranged for 2005-2006. As
well as dealing with money laundering, these sessions provide a useful opportunity to
promote the Professional Ethics service at an early stage in trainee solicitors training.
12.9 Third European Money Laundering Directive - The Law Society has taken a
prominent role in lobbying the European institutions and the government on the third
directive. The Law Society will focus its attention on issues connected to the
implementation of the directive. The Treasury has invited the Law Society to
participate in a Working Group looking at the regulation of trust and company service
providers. As other areas of implementation are explored the Law Society will press
for proportionate Regulations which recognise the diversity of the profession and the
resource implications of further money laundering regulatory requirements for
solicitors. We expect to have intensive dialogue with Government in the event that
they are moved to change the exemption for professional legal advisers from the
tipping off provisions under POCA. The deadline for implementation of the third
directive into revised Money Laundering Regulations is November 2007. Draft
Regulations will be published for formal consultation in October 2006.
12.10 For the profession on its web-site - The Law Society has been in
correspondence with the Burnley-based solicitors. The solicitors requested the
Society’s assistance in raising matters concerning the nature of their arrests,
which in once instance included a dawn raid and extensive media publicity. The
case raises questions about criminal clients who are not legally aided and pay
solicitors privately, and the status of certain clients in mixed practices which
include criminal departments. Other issues include the method of arrest and
seizure of documents and the damage to solicitors’ businesses. The Law
Society is concerned that the circumstances in this case could have an impact
on the confidence of solicitors in the regime and could have important
implications for other businesses in the regulated sector. The Law Society has
already contacted ACPO about some aspects of this case and is deciding on
the most appropriate course of action to address these concerns.
13. Planning & Environmental Law Committee
13.1 Reform of the planning system – After 18 months in Parliament the Planning &
Compulsory Purchase Act received Royal Assent in July 2004. The committee
provided briefings and amendments on the Bill and contributed notably to the
retention of the system for outline planning permission which the Government had
wanted to abolish. The Government has embarked on consultations on secondary
legislation and guidance to be provided under the Act and this continues to form a
major component of the committee’s work. The committee has provided examples of
model wording for publication by the Government so as to encourage standardisation
and quicker negotiation of terms in planning agreements between local authorities
developers and local authorities. It is to be published in mid-December.
13.2 Planning Gain Supplement - the Chancellor of the Exchequer is expected to
announce in the pre-Budget report the Government’s response to the
recommendation in the Barker report on the supply of housing for the
introduction of a planning gain supplement, some form of taxation of
betterment, to fund infrastructure. The committee will review the proposals
13.3 Wales – Under devolution the Welsh National Assembly has powers to make
secondary legislation in planning and environmental law. The systems in Wales and
England have begun to diverge and potentially could become separate systems,
particularly if the recommendation of the Richard Commission, supported by the
committee, to provide the Assembly with primary legislative powers is adopted in
these areas of law. Meanwhile the committee has tried to monitor developments and
to participate fully in consultations on planning and environmental issues by the
Welsh Assembly Government: they now form roughly one third of the items
considered by the committee. Members of the committee met with the Planning
Minister to discuss the reform of the Welsh planning system prior to the preparation of
the Planning & Compulsory Purchase Act. The committee’s July 2004 meeting was
held in Cardiff in order to meet with Assembly Members, the Planning Minister and
officials from the Welsh Assembly Government.
14. Tax Law Committee
14.1 Review of Corporation tax - The Revenue has established a group of representative
bodies to participate in a review of corporation tax. Mike Hardwick (Chair of the
committee) and Ashley Greenbank (Chair of the Corporation Tax Sub-Committee
represent the Law Society at these meetings. A response has been submitted to the
consultation paper issued as part of the Pre-Budget Report papers. There may be
an anouncement on this in the Pre-Budget Report, which is anticipated to take
place in early December.
14.2 Merger of the Revenue Departments – A report by Gus O’Donnell recommended that
the Inland Revenue and Customs be merged into one government department. A bill
to formally create the new HM Revenue and Customs has been introduced to
parliament. The Bill has received Royal Assent and the new department officially
came into being on 18 April 2005. A further bill dealing with the powers of the new
body will follow and we are actively involved in discussions on the scope of the new
powers. We responded to the consultation paper on the scope of the powers of
HMRC and the Chair of the Tax Law Committee is a member of the Consultative
Committee on powers set up by HMRC. This has considered the responses to the
consultation and is a looking at a wide range of issues including investigatory
powers, costs and penalties. There may be an anouncement on this in the Pre-
Budget Report, which is anticipated to take place in early December.
14.3 Property Investment Funds – The Chancellor announced in the last year’s Budget his
intention to create Property Investment funds. A consultation paper was published
and a response was submitted. In the Budget 2005, the Government published a
consultation paper to consider the introduction of Real Estate Investment Trusts
(REITs) with the aim of promoting greater efficiency in the property investment
market. They have abandoned the term PIFs. We have resurrected the working
party that considered PIFs last year and have responded to the consultation. The
deadline for response is 27 May 2005. The Government aims to legislate for a UK-
REIT in Finance Bill 2006. There may be an anouncement on this in the Pre-
Budget Report, which is anticipated to take place in early December.
14.4 Property Investment Funds – The Chancellor announced in the last year’s Budget his
intention to create Property Investment funds. A consultation paper was published
and a response was submitted. In the Budget 2005, the Government published a
consultation paper to consider the introduction of Real Estate Investment Trusts
(REITs) with the aim of promoting greater efficiency in the property investment
market. They have abandoned the term PIFs. We will be resurrecting the working
party that considered PIFs last year and will respond to the consultation. The
deadline for response is 27 May 2005. The Government aims to legislate for a UK-
REIT in Finance Bill 2006.
15. Wills & Equity Committee
15.1 Banking Practices – Following a meeting in August 2005 with representatives of Age
Concern, Help the Aged, Action on Elder Abuse and the Citizen’s Advice Bureaux to
discuss common concerns about the manner in which the banking sector handles
enduring power of attorney (EPA) and related issues, focusing around the perceived
poor level of training and understanding amongst counter staff about such
transactions, the Press Office is working to generate further media coverage of
these issues. A further meeting with the British Bankers Association has been
arranged for 22nd November 2005 which is to be attended by charity/voluntary
group representatives, senior Public Guardianship Office staff at which these
issues will be raised again.
15.2 Limited Liability Partnerships and Executorships - Following a decision of the probate
registrars in late 2003 to stop permitting applications from solicitors for a grant of
probate where the firm had converted from a partnership to an LLP, the Law Society
asked the probate registrars and then the President of the Family Division to
review the decision. The President of the Family Division declined to intervene,
so the Society agreed to party fund litigation by TLT solicitors LLP, appealing
against the rejection of an application for a grant of probate. The Probate
Section is organising a fighting fund to help with the costs of the action. A
directions hearing was held on 25th October 2005, and the matter is to be heard
in the Chancery Division between January and March 2006. The Attorney
General is to be invited to act as Advocate to the Court on the issue of
construction of the executorship appointment clause.
15.3 EU Succession and Wills Green Paper - The European Commission published a
Green Paper dealing with how issues of conflict between jurisdictions could be
resolved. A joint Law Society/Society of Trust and Estate Practitioners (STEP)
working party submitted a response at the end of September 2005. A main
concern was that any importation of civil law principles should, if introduced be
applicable only to property in the estate at death. This would be in order to
avoid the importing civil law rules which allow forced heirs to make up their
inheritance by claiming against property disposed of prior to death. In some
civil law states such claims can apply to property disposed of 30 years or more
previously. Prior to submission of the joint Law Society STEP response a
number of meeting were held between working party members and Department
for Constitutional Affairs Officials to discuss the main areas of concern arising
from proposals and seeking to persuade the government in its own response to
acknowledge these concerns and lobby actively to ensure that where
appropriate, the legitimate interests of the common lawyers were protected.
Following the Green Paper exercise it is expected that further proposals and
draft regulations emerge from the European Commission in late 2006/2007.
15.4 Post Office Card Accounts
Following a referral from Practice Advice Service the chairman of Wills & Equity
wrote to the Chief Executive of the Post Office expressing concern at the
policy of the Post Office, in relation to card accounts, of refusing to deal
directly with solicitors and insisting on seeing the personal representatives in
person before information would be released about accounts of deceased
persons. The Post Office wrote back in August 2005 stating that the policy had
been based on incorrect legal advice and that it would be changed. However,
reports are still being received about problems with card accounts and so the
situation will have to be monitored.
15.5 Charities Bill
Work continues on the Charities Bill which was re-introduced after the first Bill
fell at the May General Election. A number of issues raised by the Law Society
in briefings on the first Bill have been dealt with satisfactorily in the new Bill.
15.6 Statutory Legacy consultation – The DCA published a consultation paper in June
2005 on raising the statutory entitlement on intestacy from the current limit of
£125,000 to £350, 000, plus a share in the residue for a spouse with children and
from £200,000 to £650,000 plus a share in the residue for a spouse without
children. The paper also asked if the underlying assumptions about the
structure of the statutory legacy rules should be reviewed at a future date given
the changes to social and family structure since the introduction of the rules in
1925. A working group was set up to frame a response. The Society submitted
a response suggesting that the where there was a surviving spouse with
children the spouses share should be increased to £250,000, not £350,000 as
proposed, in order that the interests of any children from an earlier marriage
would not be completely overlooked. The working party supported the
proposal to raise the surviving spouse’s entitlement to £650,000 where there
were no children. The response suggested that it was time for a general review
of the assumptions underlying the current intestacy rules.
16. Joint Working Party of the UK Bars and Law Society on Competition
16.1 Private Enforcement - The EU Commission has published a study (by Ashursts
Solicitors) on Private Enforcement. The study is on the conditions of claims for
damages in case of infringement of EC competition rules and is intended to inform the
Commission’s work on a Green Paper, which is due in December (or at the latest
in the new year). The working party has considered the Ashursts Report and
will consider the Green Paper. We are considering hosting a conference on
Private Enforcement, which would be of interest to both competition lawyers
and litigation lawyers to coincide with the Green Paper consultation period. We
are hopeful that this is something the Competition Commissioner Neelie Kroes
17.1 Anti-terrorism - Terrorism Bill - The Terrorism Bill has been considered by the
Commons and will now go into the Lords. Second Reading in the Lords will
take place on 21 November. The main issues of concern for the Society have
been the lack of intent in the new offence of encouragement of terrorism
(clause 1) and the proposed extension of pre-charge detention from 14 days to
3 months (clause 23). The Society produced written briefings and amendments
on the Bill and met with Dominic Grieve (shadow Attorney General) and with Lib
Dem representatives to brief them orally on our concerns. Alexandra Marks
gave oral evidence on the Bill on behalf of the Society to the Home Affairs
Select Committee and the Joint Committee on Human Rights. Our amendment
on clause 1 was tabled by Dominic Grieve and was the lead amendment. The
government’s majority on the vote on the amendment was reduced to 30. The
government suffered a well publicised defeat on its proposal to extend pre-
charge detention to 90 days, which the Society had strongly opposed. MPs
subsequently voted to extend the pre-charge detention period from 14 to 28
Intervention – We await the House of Lords’ judgment in A and others v The
Secretary of State for the Home Department, which relates to the admissibility
of evidence obtained under torture. We jointly intervened in the case with
Amnesty International and other NGO’s. The case was heard in October 2005.
17.2 Identity Cards – Recent concessions announced by the Government include a
stand alone card valid for 10 years for £30 and limits on the information to be
recorded. Reports have been published by the JCHR, Lords Constitution
Committee, LSE and KPMG reviewing the identity cards scheme. We submitted
a parliamentary briefing for the second reading of the Bill in the House of Lords
and we have provided amendments to the Bill for the Lords committee stage
which will take place on 15 – 16 November. We are finalising the agenda and
arrangements for a by-invitation seminar on the issue of surveillance for
opinion formers, to be held jointly with the Office of the Information
Commissioner on 22 November. Tony McNulty and Baroness Faulkner of
Margavine will speak at the seminar.
17.3 Coroner’s Reform – the Department for Constitutional Affairs issued a
consultation paper on Post Mortems and the Early Release of Bodies in Cases
of Suspicious Death. It was suggested that legislative proposals to create
statutory time limits for the early release of bodies in cases of suspicious death
would be included in the draft Coroner Reform Bill due to be published soon.
The Criminal Law Committee and Inquest Working Party responded to the
proposals with a view that no reform was appropriate in the circumstances as
each case should be treated individually with proper, fair and effective control
by the coroner, and by the judiciary once a person is charged.
17.4 Compensation for Victims of Terrorism - We have been approached by Lovells
to support their campaign of the Government to close the current gap that does
not allow British victims of terrorist acts abroad to receive compensation for
injuries and loss suffered. The Board and Civil Litigation Committee are
currently reviewing this request.
Tribunals – The Council on Tribunals issued a consultation paper on the use and
value of oral hearings and the use of alternative dispute resolution in tribunals. We
submitted a response to the paper stating that although we value the initiative to
promote alternative ways to resolve tribunal disputes, including the use of mediation,
there are some types of cases where this approach may not be appropriate. Oral
hearings are likely to be necessary in cases that involve complex law, complex facts,
where there is a clear conflict of evidence or where vulnerable parties are involved.
17.5 Better Law-making Programme – Plans for the publication of the Better Law Making
Charter are in hand, with a reception to be hosted by the President in December.
Copies of the Charter will be made available as soon as possible.
Other work undertaken includes:
post-legislative scrutiny – see agenda item
legal rights impact assessments - The Department for Constitutional Affairs
(DCA) has introduced its new legal aid impact test, which requires
departments proposing changes which may affect the legal aid budget,
or the courts, to obtain approval from the DCA first. The President has
written to Lord Falconer suggesting a meeting between officials to
discuss the test and how it is expected to work.
Regulatory Reform Bill - See agenda item
Better Regulation - See agenda item