News blogs

Jonathan Rayner
Wednesday, 17 March 2010

There’s a new feel-good factor in Africa, a mingled sense of pride, optimism and confidence that the future is in its people’s hands. Its economy is booming and the ‘developed world’ is again beating a path to its door, not as colonial invaders this time, but as putative collaborators.

It’s seems very different from my experiences of the continent – but more of that later.

First, let’s look at the figures. The UK’s gross domestic product shrunk by 4.3% in 2009, according to the British Chamber of Commerce. The GDP of the nations of sub-Saharan Africa, by contrast, grew an average of 4.5% in the same period – with Nigeria recording a whopping 6.9% increase.

Vast oil reserves have been discovered in both East and West Africa. Democracies are springing up like maize in the fields. China and India are investing billions of dollars in the emerging economies. The World Bank has moved away from writing out cheques and is working on programmes to develop Africa’s ‘human capital’; one aim is to stop the brain drain of the continent’s best talents, another is to enlist the help of the African diaspora to encourage entrepreneurial projects at home.

I know this because I attended an event on Monday organised by the City group of the Black Solicitors Network (BSN) and hosted by Freshfields. The event was Africa Emerging Markets: Opportunities and Challenges and the topic was how British lawyers could form partnerships with African firms to share expertise and build capacity.

The speakers were educated and knowledgeable professionals, and entirely convincing – as you would expect from international lawyers and financiers and vice-presidents of multinational oil corporations. There was lots of good-natured laughter, too, some inspired by Nigerian ‘in-jokes’ which I didn’t get.

I left the meeting uplifted and sure that the continent, for so long blighted by the slave trade, post-colonial wars and disease, was coming into its own.

This feeling bolstered the optimism I’d felt after conducting a podcast interview with Rwandan lawyer Thierry Ngoga Gakuba. Some 800,000 people had been killed in the 1994 genocide and all institutions and infrastructure destroyed. They started from zero, he told me, and yet 16 years later the country was functioning again. The bar association was 500 strong, around half of them women, and there were elections in six months’ time.

So why was my own experience of Africa so different? Chronology, mostly: the world has moved on.

I’m old enough to have lived through the half century or so since the first African country became independent of Britain, its colonial master. That country was the Gold Coast, which became Ghana almost exactly 53 years ago – on 6 March 1957.

The process of liberation accelerated after that as, in prime minister Harold Macmillan’s words to the South African parliament in 1960, the ‘wind of change’ blew through the continent. Northern Rhodesia became Zambia, Tanganyika became Tanzania, Bechuanaland became Swaziland, South West Africa became Namibia and so on. (A whole generation of British children knew this because the names on the stamps they collected kept changing.)

The most significant independence for me, though, was Nyasaland becoming Malawi – because in 1983 I landed at Lilongwe airport, the country’s capital, to teach English. I was there almost five years and it was a life-forming experience that opened my eyes to a culture quite different from my public school and suburban upbringing. My youngest child was born there – on the bedroom floor a hundred miles north of Lilongwe. But that’s another story…

There was another side to life there, too. There was polio, leprosy, malaria, AIDS and other illnesses you preferred not to think about. Apartheid was still alive and well in South Africa and Malawi was ruled by a life president who censored books and jailed political opponents.

Malawi had been independent since 1964, and yet the worst colonial attitudes were still but shallowly buried. The only black Malawians at the sports club were bar staff, waiters and gardeners. Most Europeans didn’t trouble with the local languages, apart from to learn a few imperative forms of verbs. A white Zimbabwean woman told my wife (who was a nurse) that it was acceptable to prescribe out of date penicillin ‘because it is only for my garden boy’.

Malawian women were very much second-class citizens. Educated ones rarely married, in part because by the time they had finished their education they were deemed too old, and partly because they might show up their husbands’ ignorance. Secretaries rarely wed, either – because to get the job, it was assumed, they had to sleep with the boss. In some tribes, uncles had sex with their nieces once they reached a certain age. Girls and women knelt to serve men their food and drink.

Most tellingly for me, perhaps, was the time when one of my girl pupils (she was 22 years old) became head of her boarding house at school. I congratulated her and said there was no stopping her now: she could go right to the top. ‘No,’ she said. ‘Women are not as clever as men.’

Oh, really? Just ask Paulette Mastin, chairwoman of the BSN City group, or Mary Boakye, head of Africa financial markets group at City firm Denton Wilde Sapte, or Rosalind Kainyah, vice-president of external affairs at Tullow Oil, or any of the other African women speakers at Monday’s event. They might beg to differ with my pupil of 20-something years ago.

Rachel Rothwell
Thursday, 11 March 2010

The Gazette revealed this week that law firms are already getting well into discussions with external investors in readiness for when the rules change in October 2011, and indeed some are even going as far as to enter into ‘gentlemen’s agreements’ with funders to exchange loans for an equity stake once the rules permit it.

But while it seems quite a few firms are actually engaging in these discussions, none of them are exactly broadcasting that they are doing so, for obvious reasons. If you were gearing up to get yourself a nice little million pound war chest with which to go out and grab some of the top teams from your rival firms, you wouldn’t exactly want anyone to know about it in advance.

But it creates a funny kind of atmosphere. No firm is exactly sure what their competitors are going to do come October 2011. Are they going to take the external buck, and if so, how much, and how are they going to use that cash?

Firms that are being active in their arrangements – or as active as the rules permit – probably have a fair idea that others are doing the same.

But some of those that are not seeking outside capital themselves are – I am told – simply assuming that no one else in their market is either. They won’t think the changes affect them until they realise someone has just waved a big wad of cash under the noses of some of their highest fee-earning lawyers, and the whole team has just walked out of the door, Pied Piper-style.

It is not just the commoditised fields of personal injury and conveyancing that will be affected by the ownership and investment new rules, though of course they will. These sectors of the profession are only too aware of the prospect of big brands entering their markets.

But City firms are also likely to be taking advantage of the opportunities. A large firm with a £60-100m turnover could easily raise enough to buy another practice by selling a minority stake – though if it is not giving away a controlling interest it will have to persuade venture capitalists that it is running a very tight ship.

But even at the smaller end, a £10m turnover firm might convince a business angel or private investor to part with half a million to scoop up some talent from competitors in return for a minority equity share.

Even at the very top of the tree, the magic circle could be tempted by the huge cash injection that could be gained from, say, a flotation on the stock exchange. What for, you may wonder – they are already too big to need any serious expansion.

But when you look at law firms globally, there is probably no single firm that has a global market share of much more than 1%. Compare that to the Big Four accountants, where the likes of PricewaterhouseCoopers have – I would guess – around a 25% share, and you begin to see the potential.

True, law firms have more obstacles to global expansion than accountants because of local bar rules, but still. It doesn’t matter what sector of private practice you’re in, the chances are the new rules on external investment are going to affect you somehow, good or bad.

James Dean
Thursday, 11 March 2010

Judges in family proceedings have been given an unenviable task. Following a decision of the Supreme Court last week, they must now think longer and harder about whether a child should appear in court to face the person that might have abused them. Such a critical decision could change a child’s life.

Five law lords ruled unanimously that that the presumption against a child giving live evidence in family proceedings should be removed. Lady Hale, in her succinct 35-page leading judgment, made it clear that Europe was key in the judges’ decision: the right to a private life is not an unqualified right, and must be balanced with the right of the accused to a fair hearing. By building the presumption that the child should not be called, this latter right could not be reconciled with the former.

Judges in family proceedings will therefore have to change tack when making the decision whether or not to allow a child to be called to give evidence, with the rights balancing exercise taking centre stage. Hale recognised this departure in her judgement: ‘The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present.’ And in an apparent direction to family judges, Hale suggests that ‘the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child'.

Nevertheless, different judges will balance these competing rights in different ways. The removal of the presumption means the decision becomes harder to make. The potential for a child to be permanently damaged by a courtroom appearance will undoubtedly nag at the mind of the presiding judge, and the behaviour of any respondents in the courtroom should the child appear cannot be predicted.

The first chance a judge will have to apply the new balancing test will be in the case in question, Re W (Children). Charlotte (the pseudonym of a 14-year-old girl who alleges sexual abuse by her stepfather) could be called into the courtroom over the coming weeks. The decision of the judges, and their reasoning, will be keenly watched.

Catherine Baksi
Friday, 5 March 2010

Between them justice secretary Jack Straw and former civil servant Sir Ian Magee hammered the final nail into the coffin of the Legal Services Commission this week.

Straw accepted the proposal of Magee, made in his review of legal aid governance and delivery, to transform the LSC from an arm’s length non-department public body into an executive of the Ministry of Justice.

Magee’s review, commissioned by the MoJ, followed the qualification of its accounts for 2008/09 and two highly critical reports of the LSC by the National Audit Office, and the Public Accounts Committee.

Since it was created more than 10 years ago, Magee said the LSC has undergone ‘considerable change and reform as it moved to commissioning, procuring and paying for services’.

‘It has moved a long way from its roots in the Legal Aid Board as personnel and focus have changed,’ he said, and its role has developed ‘piecemeal’.

He concluded: ‘There is too much that requires fixing to leave things as they are.’

In particular, Magee was scathing of the financial management within the organisation, which he found to lack even ‘basic financial controls over fund expenditure’.

‘It is surprising that, with responsibility for such large sums of public money, the LSC appears to have no overall system of integrated internal financial control,’ he said.

No doubt most practitioners will regard Magee’s findings as statements of the flipping obvious, which many have drawn attention to for some time.

So the question has to be asked how the LSC had been able to get away with things for so long? Why has it been given such a free rein for so long? And why did the MoJ, which has been so concerned with making budget savings elsewhere, not step in earlier?

After all, such lax financial management within law firms doing publicly funded work would not have been tolerated by the LSC.

Jonathan Rayner
Friday, 26 February 2010

The new policy on assisted suicide is not the mercy killing charter that some religious groups, charities and newspapers have painted it.

Director of public prosecutions Keir Starmer, announcing the new policy yesterday, made it clear that mercy killing remains a crime – the same as any other killing.

You’ll be in the dock on a murder charge if you give the mad aunt in the attic a lethal injection to put her out of her misery. Or starve someone who’s in a coma. Or smother a disabled baby.

That’s because you’ve killed someone. It’s not assisted suicide because, as Starmer said: ‘The act of suicide requires the victim to take his or her own life.’

The new policy arises from a Crown Prosecution Service consultation that received the remarkable total of more than 4,800 responses. Some 4,000 of those were from individual members of the public, which shows what a sensitive issue this is. And then there were responses from doctors, other healthcare professionals, representatives from several faiths, academics, lawyers, public servants and politicians, as well as over 100 organisations.

The resultant policy speaks a lot of common sense.

Killing is a crime, it says, and so under certain circumstances is assisted suicide. You can’t help someone to kill himself if he lacks the mental capacity to make an informed decision to commit suicide, for instance. You’ll be prosecuted. Similarly, you can’t help someone under 18 years of age – they are not considered mature enough to reach the decision.

There are 14 other, in Starmer’s words, ‘public interest factors’ in favour of prosecution. For example, you’ll be in the dock if you pressured someone to commit suicide or accepted payment to help someone kill himself. You’ll also be prosecuted if you were not ‘wholly motivated by compassion’ – because you stood to gain from the victim’s death. Doctors, nurses, carers, prison officers and others with professional obligations towards victims will also face prosecution.

There are just six ‘public interest factors’ against prosecution. Prominent among these is where the victim has reached a ‘voluntary, clear, settled and informed decision to commit suicide’. Your assistance under such circumstances won’t automatically lead to prosecution. This is clearly the case with Debbie Purdy, incidentally, who is entirely compos mentis and has made public her wish to die when her medical condition makes living unbearable.

Other factors against prosecution include cooperating with the police after the event and seeking to dissuade the victim from suicide.

There is one grey area, however. Suppose you help your spouse to kill himself or herself to escape the pain and indignity of a terminal illness. You’ve acted out of compassion, which is good, but you also stand to benefit from the victim’s death – because you will inherit the entire estate – which is bad.

Will you be prosecuted or not? Starmer has the answer: ‘Each case has to be considered on its own facts and merits.’

Catherine Baksi
Wednesday, 24 February 2010

Could a new holistic approach to training solicitors, being trialed by Northumbria University Law School in partnership with national firm Irwin Mitchell, be the future of legal education?

The Master of Law (Solicitor) degree combines the academic, vocational and training stages of qualification as a solicitor. At the end of the full-time, five-year degree course graduates can apply to the SRA for enrolment as a solicitor.

The course, made possible by an SRA initiative and designed to pilot work-based learning as a means of increasing access to the legal profession, incorporates a qualifying law degree with the legal practice course and work-based learning replacing the training contract.

The degree has been developed in consultation with the legal profession and is intended to meet the training needs of future lawyers, as well as the business needs of law firms. It is designed to open up access to the legal profession, while preserving the rigour of the training experience.

Increasing access to the profession is no doubt important in the light of recent surveys that have revealed the legal profession to be drawn from increasingly narrow sections of society, but could this new form of qualification create a two-tier system in which some are regarded as inferior?

Or will this route catch on and herald the end of the training contract?

Catherine Baksi
Friday, 19 February 2010

As a BVC student on an advocacy training weekend, I recall Nigel Pascoe’s dramatisation of the case of the Quakers William Penn and William Mead, charged with riot for carrying out a prayer meeting in Grace Church Street. Ordered by the judge to convict the pair, the jury courageously returned verdicts of not guilty, as the men had done nothing wrong. For their pains the jury were imprisoned in contempt of court.

Critics of the jury system often recite the argument that trial by jury equates to trial by the prejudiced and ignorant, suggesting that juries are all to often made up of the long-term unemployed because anyone clever enough can get out of jury service. They question whether jurors can be trusted to go beyond the defendant’s appearance and see through the obfuscation, confusion and clever arguments advanced by lawyers, to determine the truth.

Research published this week by the Ministry of Justice does seem to vindicate the jury system. The report, Are Juries Fair, compiled by Cheryl Thomas of the University of London, concluded that juries are fair and do not discriminate on racial grounds, convicting in around 60% of cases.

The research did show that many jurors did not fully understand their responsibilities or the legal directions given by the judge before they retire. The blame for this cannot be attributed to the juror system or the stupidity of jurors, but surely indicates that judges should try to be clearer in their directions.

Even if the report does not convince doubters of the efficacy of the jury system, the question for them is, with what would they replace it? The alternative to juries – judge only trials – such as the one currently going on at the Royal Court of Justice, is hardly a desirable alternative.

Would you rather trust your fate to one person, whose wages and pension are paid by the government, or 12 disinterested people doing their civic duty?

Jonathan Rayner
Wednesday, 17 February 2010

At an extraordinary general meeting on Sunday 14 February the British National Party (BNP) approved its new constitution allowing people of all ethnicities to become members.

The new constitution, groundbreaking for a party whose appeal is largely based on fostering distrust of immigrants and foreigners generally, was approved by an overwhelming majority of the 300 BNP members attending, with just five votes against and four abstentions.

The change of heart was in response to a court order following legal action taken by the Equality and Human Rights Commission (EHRC) in which it accused the BNP of contravening discrimination legislation – specifically, the Race Relations Act.

BNP leader Nick Griffin MEP said nobody was ‘happy about being denied the right of self-association’, but the party now had to get on with the ‘serious business of saving Britain from the ravages of the establishment parties’.

What are the policies behind this ‘serious business’?

The BNP’s policies paint a picture of a downtrodden British populace struggling against the evils of immigration, the Euro and the politically correct. The overall impression is one of xenophobia mixed with a rose-tinted vision of the good old days. These were the days when, or so the policies’ authors claim, we did our own thing without the interference of politicians, globalisation and foreigners from our former colonies setting up home in our green and pleasant land.

One of the party’s policies, for example, advocates introducing ‘voluntary resettlement’ for these latter legal immigrants and deporting the rest. It has no truck with ‘asylum seekers’, all of whom are either bogus or could find refuge much nearer their home countries.

On Europe, by which the party presumably means our membership of the EU, it supports what it calls the ‘overwhelming majority’ of British people who want to keep the pound sterling and ‘our traditional weights and measures’.

The police will be freed from their ‘politically correct straitjacket’ so they can do their jobs properly.

The party also calls for the ‘selective exclusion of foreign-made goods from British markets’, the ending of ‘trendy’ teaching methods, a reduction in foreign aid, a boost to defence spending, putting pensioners before asylum seekers (them again) and allowing the people to decide about capital punishment.

These policies – in particular the ones about unleashing the police and the possible reintroduction of capital punishment – are scary to the more liberal-minded among us. They have a definite resonance, however, with many of the nation’s voters, including some members of the black and ethnic minority community. A Sikh, Rajinder Singh, 75, in a protest against what he sees as the Islamification of Britain, is already reported to have said he wants to be the first non-white BNP member.

Singh is not alone. Peter David, 56, an elder of the Redeemed Christian Church of God, who came to Britain in the 1970s from Trinidad, told Times journalist Dominic Kennedy that he supported the BNP’s policy of stemming immigration. There are so many immigrants here, he said, that our little island might sink. Kennedy recorded these words just before he was forcibly expelled from the extraordinary general meeting for having previously written a critical piece about the party.

Which perhaps speaks volumes about the reformed BNP.

The BNP has every right to promote these policies, of course, providing it does not incite racial or religious hatred, discriminate against any section of the community or break any other laws.

Its policies might remind some people of the bilious inanities of a saloon bar bore, but it’s a free world – and all that.

But with the BNP having had to change its rules, that has got me wondering whether any other organisations – even, perhaps, some involving lawyers – might have to do the same?

I wonder about the status of a group such as the Association of Women Solicitors (AWS), whose membership is restricted to women solicitors or trainees who are Law Society members or associate members.

Why, when the BNP has to toe the racial discrimination line, was the AWS allowed to get away with ‘discrimination’ on the grounds of gender and exclude men from its ranks?

For that matter, how can an organisation calling itself the Black Solicitors Network (BSN) be allowed?

It turns out that it is because there are different rules for clubs or associations and political parties. The former can confine membership to a specific group so long as their main purpose is to provide benefits to their members. Neither the AWS nor the BSN discriminates on the grounds of colour. The AWS campaigns on behalf of women of all races and the BSN specifically states on its website that people of all colours and race who share its values are welcome to join.

The BNP, on the other hand, is a political party whose main aim is not just to benefit its members. It also aims to win elections, gain political power and represent the public – and so, like any other political party, has to comply with colour and other discrimination legislation. So there you have it.

James Dean
Thursday, 11 February 2010

My grandmother once told me a rags-to-riches story about the son of one of her friends, who worked his way from unemployment into a lofty position at a major car manufacturer.

After the Second World War, with British peacetime industry creaking back into life, the man found himself jobless and with few prospects. He had fought from 1940 until the end of the war, although without rising to any position of seniority; but in any case, he did not want to stay in the Army. He had quit school early, had never been to university, and had few qualifications to speak of.

Weeks after his return from France, he walked into his local car plant and asked if he could work for free. Unsurprisingly, the foreman said yes, so he set about doing odd jobs on the factory floor – for six months. After that, he was paid minimum wage for another year doing the same work, but still he stayed late when they were men short or when the cars were due to be rolled onto ships for export.

The owners of the plant must have cottoned on to the fact that this guy was not of the usual nine-to-five breed. After 18 months of work at the plant, he was bumped straight into management – with suit, tie, and no doubt bowler hat to match. From then on, he rose steadily upwards, until he retired into the countryside on a considerable salary.

Grandma had an audience of two when recounting this story at the end of last summer: me, and my unemployed brother. It must have had an impact on him, because he’s since lined up some work experience in schools before he starts a teaching course later this year.

This week, news reaches the Gazette that junior lawyers being told to work for free ‘or else.’ Clearly there are differences between my grandmother’s story – which is more about individual self-motivation – and law firms getting students to do what can at best be described as extended internships. But I think there is a lesson in her story.

Regardless of economic uncertainty and dried-up job markets, companies – including law firms – will always favour the most committed worker out of two otherwise equal candidates. Someone who shows a gritty, grafting and dogged character and will work for nothing will outdo most others – especially those with the mindset that a completed law degree or training contract guarantees an easy ticket to partnership. It is undeniably frustrating to hit potholes on what was once a smoothly paved career path, but sometimes there is little option but to take what work you can.

Unfortunately, the good intentions of those who offer themselves for free work can be abused. Well-meaning firms that are in genuine economic difficulty can be excused for offering what work they can, but those seeking to profit from the goodwill of others should be exposed. Hopefully, the latter are in the minority, and a resolute work ethic, like that of grandma’s car man, will eventually be rewarded.

Rachel Rothwell
Tuesday, 9 February 2010

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As we reported last week when the SRA takes on its Legal Services Act powers to conduct disciplinary matters itself – for lesser offences worth a maximum fine of £2,000 - it is going to do so using the civil standard of proof.

That means that, unlike in proceedings before the SDT, the SRA will only need to prove that the offence occurred ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’.

Solicitors will not be forced to go along with this. They will still have the option of choosing to have their alleged offence dealt with by the SDT, with its higher proof threshold.

Why would anyone choose to have their case heard by the SRA then?

The simple answer is: cash.

There is a real issue at the moment with the cost of proceedings before the SDT.

Where a solicitor contests the charges and is found guilty, the costs awarded against him can often be much greater than the actual fine issued. The SRA’s proceedings will be far cheaper, so if the solicitor does lose, at least it won’t cost as much.

But still, a lot of solicitors will be riled by the notion that their professional reputation could be seriously harmed on the basis that they were more likely to have committed an offence than not. Is this fair?

The SRA points out that there is a ‘strong trend’ towards the civil standard of proof in other sectors. It is applied in police misconduct cases, for example, and cases heard before the Financial Services and Markets Tribunal.

Why should solicitors be any different, it would argue, and perhaps it has a point.

The SRA’s civil standard will not be applied to offences where dishonesty is alleged – which really could be the ruin of their professional reputation – because the SRA’s policy is always to refer these to the SDT.

But there is one aspect of all this which makes something of a mockery of the SRA’s proposals, through no fault of the regulator itself.

Solicitors will be able to appeal their decision under SRA proceedings, and the appeal will be heard by the SDT. The SRA tried to persuade the SDT to maintain consistency by applying the civil proof standard, but so far it has refused, and shows no sign of budging.

So it seems for solicitors facing lesser offences, the course of action is clear.

In the first instance, save costs by having the case heard by the SRA. If things go badly, hop along to the SDT where the charges might be a bit more difficult to prove.

Although, of course, the best method is not to get yourself into trouble with the regulator in the first place.