Archive for May, 2007

Farewell then… (Part 1 hopefully).

Published
by
NL
on 9 May 2007
in whatever
. 0 Comments

To the DCA, now part of the thoroughly Orwellian overtoned, or is that Pétain-ist Ministry of Justice (at justice.gov.uk, no less).

I don’t, in principle, object to the partition of the Home Office, but that was worryingly quick. Either the assorted departments were already so distinct that it was merely a matter of peeling back a couple of bits of sellotape, or there hasn’t been time to properly constitute the new Ministries. Ho hum, rushed and poorly thought through implementation of a not too bad idea, how familiar from this government.

[Edit, courtesy of The Magistrate's Blog, comes the following, issued by the Lord Chief Justice. I knew the judges were seeking assurances on independence, but for this to be issued is rather bad, particularly the references to giving evidence to the Constitutional Affairs Committee - it looks like the Chief Justice is aiming to wield a big stick, speaking softly having failed.

The Ministry of Justice has come into being today. The judiciary consider that the creation of a new Ministry of Justice raises important issues of principle; these have been communicated repeatedly to the Lord Chancellor since January 2007 and are summarised in the judicial position paper of 29 March 2007. A working group composed of senior judges and senior Government officials has been meeting since 21 March 2007 to discuss the issues with the aim of putting in place constitutional safeguards to protect the independence of the judiciary and the proper administration of justice.

The up to date position was set out in evidence of Lord Justice Thomas and the President of the Queen's Bench Division to the Constitution Committee of the House of Lords.

We have not yet reached agreement on a way forward. We will continue with our discussions with the Government in our attempt to resolve the important issues of principle that remain.

I have convened a special meeting of the Judges' Council to discuss these issues on 15 May 2007 with representatives of all levels of the judiciary. I will also be giving evidence on this subject to the Constitutional Affairs Select Committee of the House of Commons on 22 May 2007 when I shall explain the judiciary's position, and the stage we have reached in our discussions with the Government.

Lord Phillips of Worth Matravers,
Lord Chief Justice of England and Wales

end edit]

I’m not expecting anything different from the MoJ than the DCA in regards to funding Legal Aid, but in the confusion or jockeying for position of a brand spanking new Ministry (with a soon to be ex-minister?), it is unlikely such niceties as the Constitutional Affairs Committee demolition job of the proposals will get attention.

And tomorrow? The beginning of the end of Blair’s long goodbye?

Oooh Shiny

Published
by
NL
on 7 May 2007
in law blogs and blogging and tech
. 3 Comments

How did I spend the bank holiday?

A new wordpress theme (self-modified K2), new layout and some very shiny additional toys.

Try, for instance, the search box at the top right. Oh yes - direct page update ajaxy goodness.

Likewise try the archive page (via the top menu), then try selecting date (and sub date) or categories (and sub category. Again instant update fabulousness thanks to ajax. [Having the archives effects turned on broke the permanent link structure. Sorry to anyone affected. Links to posts here should work again now. 9/5/07]

It has taken a day and a bit of fiddling to get it all to work, and it does as far as I can tell. Let me know if it doesn’t work for you (browser, OS and detailed notes please). Obviously you need javascript turned on.

There is much fine tuning of the style of the blog to come, but the change is worth it for that search facility alone.

As read by the Shadow Cabinet

Published
by
NL
on 6 May 2007
in Legal Aid and law blogs and blogging
. 1 Comment

The release of the final report of the Parliamentary Consitutional Affairs committee on the DCA/LSC proposed changes to legal aid funding was, I thought, an important moment in the wrestle over the future of legal aid. So I posted about it.

Imagine my surprise when, a day later, the post received a comment from “Oliver Heald MP, Shadow Secretary of State for Constitutional Affairs”. The comment can be seen here.

I must confess my first reaction was suspicion, so I did a quick ‘whois’ on the IP address of the commenter. It was indeed from a parliament.gov address. My second reaction, I am slightly ashamed to say, was pride - Nearly Legal, the trainee’s blog read by the shadow cabinet - but then sense and my natural scepticism kicked in. Scepticism found further food when I read a slightly abbreviated version of the same comment on a post on Outside the Law, which was also about the committee report.

Clearly, I agree with everything said in the comment by “Oliver Heald”, and we’ll take whatever support we can find in opposing the changes. But this was my first encounter as a blogger with the increasing sophistication of political parties in the use of new media.

There are a limited range of possibilities as to how largely identical comments ended up on Outside the Law and on this blog on the same day, apparently from “Oliver Heald”. In order of improbability, from most to least:

1. Oliver Heald regularly reads Nearly Legal and Ex-Lex.

2. Oliver Heald, the Shadow Secretary of State for Constitutional Affairs was having a bit of web browse on responses to the committee report and felt compelled to comment on two blawgs that posted on the issue.

3. An eager young webcameronite or two in Mr Heald’s office are attempting a hearts and minds approach in the new media, making their boss appear to be listening to the grassroots, responsive, and up to the minute.

I am of course making an assumption, but 3. seems like the most likely to me, particularly given the ‘not really getting the nature of a blog’ manifest in commenting under the full ‘Shadow Secretary…’ title. My apologies to Mr Heald if the comment was his own personal one.

However, I’m not sure how I feel about having this blog being used in such a manner, hence this post. What this has made concretely clear for me is that this is likely to be an increasing issue for anyone running a (not party political) blog dealing with some sort of topical issue.

For instance, with something like the legal aid reforms, which mean that a large number of people who might otherwise have been Labour are now very, very angry with the Government, the bright young things in the politicians’ offices will be keeping an eye on the blogs.

This will only increase in the future. So the question is what do bloggers do with these comments? I’m not sure. There appears to be an overlap between the realms of PR spam and valid comment, such that the usual response to PR guff - delete it - is perhaps not appropriate.

The comments, at least in this form, have a clearly identified party source, so are not masquerading as something that they are not (except most likely the identity of the actual poster). To that extent, they are honest and there is no reason not to let them through.

However, the comments are unlikely to be posted with any intention of entering in to a discussion, (if they are, then there is clearly no doubt over their validity), and are evidently attempting to use the blog as a vehicle for the image-management of the politico concerned. That leaves me, for one, feeling mildly used.

It might seem a bit like the form letters provided to party activists to send to their local newspapers under their names. But blogs are not local newspapers and when they are run by an individual, it is that individual’s effort and credibility, such as it is, that the politico is riding. If I want to offer my support to a party, I will do so, but that is my decision.

I haven’t come to a firm view, assuming I’m ever actually tested again. Perhaps the best course is to let them through and respond as appropriate - not that a comeback is likely.

Still, as Oliver Heald apparently commented in his capacity as a party MP, I’m sure he won’t mind me mentioning that, welcome as his support most certainly is in opposing the legal aid reforms, a brief look at his voting record on gay rights was enough to remind me why I don’t vote conservative.

White v Knowsley - Court of Appeal Judgment

Published
by
NL
on 2 May 2007
in Housing law
. 0 Comments

Given today and no surprises.

The upshot is that assured tenants and secure tenants are in exactly the same position in regard to suspended possession orders and that s.9 Housing Act 1989 and s.82 Housing Act 1985 have the same effect despite the difference in wording.

So, any assured tenant in breach of an old suspended possession order, or who received an SPO in form N28 between 2001 and mid 2006, (prior to the introduction of the N28A), regardless of whether it was breached or not, is a tolerated trespasser.

There are now definitely a lot more tolerated trespassers, whereas it was previously just presumed that they probably were.

The judgment is worth reading as it sets out the history and current position clearly. (White v Knowsley Housing Trust [2007] EWCA Civ 404)

The result is that same practical concerns apply with assured tolerated trespassers as with secure tenancies:

  • An application will be necessary to revive the tenancy, but under s.9 HA 1989, not s.85 HA 1985 .
  • The application must be made while the possession order is enforceable, so prior to the arrears and costs being paid off in most cases.
  • The tenancy does not automatically revive, nor a fresh tenancy begin once the order is unenforceable.
  • In the interim, the covenants of the tenancy are unenforceable. This includes repairing covenants, any right to buy rights and succession rights.
  • However, while the possession order is enforceable, the ex-tenant also has the protection of the possession order in applying for stay of eviction when a warrant is issued.

This part of the saga is over. Next?

Article Series - Tolerated Trespassers

  1. Tolerated Trespassers - the aftermath
  2. Tolerated trespassers: A Luta Continua
  3. Postponing Possession. Are you now and have you always been a tenant?
  4. Assured trespassers?
  5. Assured tenant or trespasser? The waiting begins.
  6. Postponed assured trespassers verdict soon(ish).
  7. Permanent trespassers and enforceable possession orders.
  8. More on London & Quadrant v Ansell
  9. White v Knowsley - Court of Appeal Judgment
  10. Reincarnation of Tenancy?
  11. S.85 Application Randomness
  12. Permanent trespassers - a fan letter
  13. Payne-less
  14. Post mortem revival of tenancy
  15. When does enforceability end?
Previous in series: :Next in series

Legal Aid Reforms ‘Reckless’ says Constitutional Affairs Committe

Published
by
NL
on 1 May 2007
in Legal Aid
. 1 Comment

The Times reports here, but negelcts to link to the actual report of the Constitutional Affairs Committee. Come on old media, get a clue.

Anyway, the report comes to the unsurprising conclusion that the reforms as planned present a real risk to access to justice. The move to a market based modelWhat Price Justice without any pilot is decribed as ‘reckless’. Blimey. If Yes Minister taught us that ‘brave’ means risky and lacking support in govt speak, then ‘reckless’ means catastrophically stupid. Harsh words indeed.

The report is well worth reading, for instance for the conclusions on the impact on BME firms, which fits nicely with the Judicial Review proceedings on begun by The Society of Asian Lawyers and Black Solicitors Network.

But the whole is deeply scathing on the lack of research and short-term driven approach to the reforms. As a taster from the section on Civil funding, para 134:

We strongly recommend that the Government reconsider the timing and comprehensiveness of the reforms. The problem areas of the legal aid budget (Crown Court defence work and child care proceedings) should be addressed swiftly, but we fail to see the need for potentially short-sighted transitional arrangements for legal aid remuneration in anticipation of the roll out of competitive tendering from October 2008, where there are already mechanisms for controlling unit costs or where the costs of cases appears to be under control. We can see merit in time in moving beyond Tailored Fixed Fees for instance, but the desire to impose inflexible national fixed fees against a shaky evidence base is unwise in the extreme. It is more so given the proposed move to competitive tendering. The LSC’s time would be far more wisely devoted to designing an appropriate system of competitive tendering, than it is to designing and implementing a suite of reforms which are fraught with difficulties and which are, in any event, only likely to be in place for a short period of time.

The LSC also gets a spanking for supressing the Otterburn report:

235. Another, even more critical example of the lack of trust between the Government and suppliers was the failure by the DCA/LSC to publish the crucial study by Andrew Otterburn on the impact of Lord Carter’s initial reform proposals, which the LSC had commissioned and received in November 2006.[282] This study, as can be seen throughout our report, was critical of the short transitional period between the introduction of the fee schemes and the roll-out of competitive tendering and of the lack of adequate evidence to come to a reliable assessment of the risks associated with the Lord Carter’s fixed fee proposals. It warned that changes to the timetable of the reforms should be made. While Lord Carter and the DCA had published a previous study by Andrew Otterburn of June 2006 on the criminal legal aid supplier base, this equally pertinent research remained unpublished. It was only on the initiative of suppliers’ representative groups that we were alerted to the study’s existence. It was eventually published in late February 2007 after we raised this issue with the Lord Chancellor.

236. While we accept the apology by the Lord Chancellor for what looked like an attempt by his Department and the LSC to suppress an important piece of research relating to the speed of the current reforms, we remain profoundly troubled by the handling of the Otterburn issue on the part of the LSC. [283] Its suggests an inability on the part of the LSC to address fairly and openly a critical aspect of the reforms: the ability of the supplier-base to survive the reform proposals.

Ouch.

So, to sum up, that is absolutely everybody, including the judiciary and the select committee, against the reforms as they stand except for the LSC and the DCA. We are now looking at four prospective judicial reviews of the unified contract and reforms; and a process so mismanaged that, in the words of the report:

237. There has been a catastrophic deterioration in the relationship between suppliers, their representative organisations, and the LSC. Unless the relationship improves, we do not see how implementation of these reforms can be successful. We urge all involved in legal aid reform to re-engage in a more constructive dialogue.

Now will the DCA/LSC take this seriously?

Advice to the desperate.

Published
by
NL
on 1 May 2007
in job
. 5 Comments

Following on from my podcast with Charon QC, it struck me that most publicly available advice on getting a training contract is aimed at people following the degree (or degree straight to GDL) route looking for a commercial or ‘meejah’ or corporate sector training contract. Fine - their life is over if they haven’t got a contract by the end of their second year (or when starting the GDL). Let us leave them to it.

As anyone who is looking for a training contract with small firms, or in the legal aid sector, knows or will very shortly know, things are quite different outside the square mile, or whatever the provincial equivalents thereof (joke).

So, I offer the benefit of my painfully gained experience, in the hope that it might make a few people slightly less miserable and slightly more likely to get the traineeship. In no particular order:

Some firms, the larger and better known amongst them, do operate a two years ahead of start date recruitment scheme, others run 12 months ahead. Watch out for those. Remember that it is never too early to build up relevant experience (see below).

Other legal aid firms or law centres (not many of either) have the Legal Services Commission funded trainee packages. These are advertised somewhat irregularly and often at short notice, given that they need to take people on before the person starts the LPC. (Guess when these were introduced? Yes, after I started the LPC). Watch out for these inthe last year of your degree or when on the GDL. Look in particular at the legal aid sector journals and websites, e.g the Legal Aid Practioners Group site (nothing on there at the moment 30/4/07).

However, of those firms still looking for trainees, many small or legal aid firms advertise at short notice for someone to start straight away or within a couple of months. This means someone at the end of or post LPC.

It is also worth considering local authority traineeships - valuable experience and generally translatable into civil legal aid jobs. Jobsgopublic often has some, frequently shortly before the given start date, again, end of or post LPC

All this does mean that it is quite possible that you will be starting, and indeed may well be finishing, your LPC with no training contract. If so, it won’t be easy. Be realistic about this.

Don’t rely on advertised posts. Send off speculative applications to firms apparently not advertising. Yes it is horrible, but, I gather, surprisingly successful. A good speculative application can tip partners into thinking seriously about a traineeship where they were just toying with the idea and you will then be the first in mind.

But for heavens sake, think about what kind of training contract you want and research what you are applying for. At a couple of interviews, I was told with a weary sigh about how roughly half the several hundred applications (for one traineeship) could be discarded because the cover letter said, for instance, how keen the person was to work for a large criminal practice. Unfortunately, they were applying to a small civil practice. If you are going to be this lazy, save yourself the time and stamp. You need to show that you understand the work of the firm, at least broadly, and it is a good idea to brush up - or research for the first time - the areas of law involved.

It is also worth researching the firm as far as possible because some of them are frankly crap. I have had dealings with at least one firm with whom I would now not accept a traineeship even if it had been offered on a platter with a side helping of financial inducements, even at my most desperate. This another way in which knowing people in the sector helps (see below). They can warn you.

It is all too true that, even given the falling numbers of would-be legal aid trainees, firms can pick and choose. Every advertised post will usually attract at least a couple of hundred applications. What firms will by and large be looking for is someone with directly relevant experience or who can show that they already understand something of the work, because there will not be time to take a trainee through the ABCs of the area.

Experience of some kind - e.g pro bono with a CAB or law centre, or experience in a firm - is hugely important. Take the experience seriously, for the law involved, the experience with clients and the case management. A couple of weeks voluntary work somewhere will usually not be enough. Be thoughtful and dedicated about gaining experience.

Do not trust or believe ‘paralegal/trainee’ advertised posts, with a traineeship ‘along the line’. There is and likely will be, no traineeship. However, you may well end up paralegalling after the LPC and for quite some time (1 or 2 years is not at all exceptional, others for even longer. Take seriously the prospect of applications in the high double figures or three figures before success. You may be more fortunate. Don’t rely on it). If so…

Don’t give up - if you really want it, rather than just falling into law, it is worth persisting. It will be bad, you will go through periods of serious despair and frustration, but if you are paralegalling, you are in a fair position to…

Make contacts. I cannot over emphasise how important this is. Sadly, it IS who you know. On the plus side, this is not in the sense of having been once been thrown up over by the managing partner’s offspring at your college, but rather in knowing or getting to know people in the sector and in firms. It is a small world and having an entrée counts. Do you already know people with contacts in the sector? Can they help to get you experience or introduce you somehow? If you do, distasteful though it may be, work it.

My traineeship, when it eventually arrived, was not via the advert - application - interview route. It was because the relevant people knew me from my work, attending the field law association meetings, etc.. Take every opportunity to be visible - not necessarily schmoozing, I personally hate that, but not backing away from meeting people, contributing, and appearing competent and enthusiastic (but not puppyish, please).

And why put yourself through all this? Because you will possibly end up doing work that is more interesting, challenging and directly under your control than pretty much anything the corporate world can provide, and you will be doing it from a very early stage. You also get a certain glow of virtue, but, of course, not a lot of money, relatively speaking.

Feel free to ignore this - it took me 18 months to get a traineeship after my LPC after all - but if you find yourself starting your LPC without a training contract, I’d suggest it is worth considering. This is not just my experience drawn on, but that of a number of people I know.