Tier 4: the recent statement of changes has clarified that a tier 4 student migrant may now fill a full-time vacancy during vacations (provided it is temporary), including as a doctor in training on a recognised foundation programme. This provision does not extend to law students undertaking their training contracts or pupillage. Studying law with a UK institution and becoming a solicitor or barrister in the UK has long been an esteemed achievement by lawyers around the world. Historically, the UK has welcomed migrants who wish to undertake the challenge. Immigration rules (the rules) and related concessions have made routes to becoming a solicitor or barrister in the UK available to migrants, in particular to Commonwealth citizens. The rules now accommodate students under tier 4 of the points-based system (PBS). Accordingly, there has been a steady movement to delete the concessions ‘outside’ of the rules accommodating ‘unconventional’ categories of students. These changes in policy could have a significant negative impact on migrants who wish to qualify as UK lawyers. Options under PBSWith the introduction of the PBS and the deletion of the concessions, where does that leave law students wishing to undertake training contracts and pupillages? Tier 1: tier 1 of the PBS was launched in full on 30 June 2008 and supposedly caters to highly skilled migrants. Tier 1 (general) permits employment or self-employment in the UK and was a route available to students. Someone with a degree qualification (such as an LLB) and a minimum earnings period (over 12 consecutive months within a 15-month period before making their application) could qualify to enter/remain in the UK under tier 1 (general). The 12-month period allowed for earnings could be before a period of full-time study. On 31 March 2009 the bar was raised to prevent points being awarded for a bachelors degree or for previous earnings under £20,000. Following these changes, the September 2009 statement of changes removed the provision for a period of study to be taken into account when considering previous earnings. UKBA states, unconstructively, that this latest change will ensure that decisions are based on an applicant’s ‘recent’ work experience and earning capability, which better demonstrate their ability to make a significant contribution to the UK labour market. An adverse effect of this change is that tier 1 (general) is no longer an option even for students who already have a masters degree but have just completed their year of study on the legal practice course (LPC) or bar vocational course (BVC). Tier 1 (post-study work), which replaced several programmes including the International Graduates Scheme, allows those who completed a course of study in the UK at an eligible institution within the last 12 months to enter/remain in the UK for two years. Post-study workers may engage in employment without the need for sponsorship, making this an ideal category for a trainee or pupil to remain in the UK. Until 31 March 2009, an applicant could qualify for this category if they had a UK postgraduate certificate or diploma. Unfortunately, this category no longer recognises postgraduate diploma courses, including the LPC or BVC, as eligible qualifications. The professional graduate certificate in education continues to be recognised and the recent statement of changes reinstated the Scottish professional graduate diploma in education as an eligible qualification that attracts points under the tier 1 (post-study work) category, but surprisingly fails to reinstate legal professional courses. Law students, particularly BVC students, are unlikely to find tier 1 accommodating. Tier 2: tier 2 is an option for law students who wish to undertake training contracts in the UK. Law firms employing migrants can act as a tier 2 sponsor during the training period and on qualification. This option does not extend to bar students who undertake pupillage with chambers, due to the self-employed nature of the role. The points-based system The PBS for immigration was introduced in 2008 to streamline the routes of entry for prospective migrants seeking to work or study in the UK. The implementation of the PBS has been punctuated by promises from the UKBA of a transparent and fair immigration system based on objective ‘points’ criteria. The removal of discretion under the system has led to the elimination of several concessions outside the rules. Thus, in March 2008 the concessions for bar students and those on a pupillage scheme were removed; and on 30 June 2008, the concession for self-employed lawyers was deleted. Most recently, on 1 October 2009, the home secretary’s latest statement of changes to the immigration rules came into effect. Upon scrutiny of these changes, it has become apparent that there remain gaps in the PBS that have serious consequences for migrant students wishing to remain in the UK, particularly for the completion of training at the bar. Tier 5: tier 5 of the PBS covers a range of temporary worker categories enabling prospective migrants to enter the UK for primarily non-economic reasons. The Law Society notes: ‘For the legal sector, sharing knowledge, experience and best practice with lawyers from around the world through work experience, secondment and internship programmes is essential to business development.’ The Law Society has registered as a tier 5 sponsor to open a route under the government-authorised exchange framework within tier 5. The Law Society can sponsor migrants and enable firms to continue to develop international networks and run secondment and exchange programmes. Whether tier 5 government authorised exchange may in the future allow for migrants who have obtained pupillage to remain in the UK under sponsorship of, for example, the Bar Council, remains to be seen. Osborne Clarke judgmentIn the case of Osborne Clarke Services v Purohit  UKEAT/0305/08, the employer had a policy of refusing to consider any training contract applications from non-EEA nationals who required a work permit. The employment appeals tribunal ruled that this was in breach of race discrimination laws, being indirectly discriminatory on the grounds of nationality, as the proportion of non-EEA nationals who could comply with it was considerably smaller than the proportion of EEA nationals, and was not justifiable under the provisions of the Race Relations Act 1996. If it is contrary to the law for an applicant to be prevented from pursuing a legal career in the UK on the basis of their nationality, then surely the immigration rules should account for this. The September 2009 statement of changes provides that the minor amendments and corrections to the PBS are not intended to have an impact on businesses or individual applicants. Nevertheless, they are part of a progressive tightening of the rules and policies surrounding migrant workers since the PBS introduction, and there has been a clear gap left in the system into which law students may inadvertently fall. The old student rules and concessions outside the rulesBefore the introduction of the PBS in February 2008, the rules for students allowed non-European (EEA) nationals to study in the UK at institutions on the Register of Education and Training Providers (RETP). Students were required to have evidence of: their acceptance onto a full-time course; the funds to pay course fees and maintain themselves in the UK; and their intention to leave the UK following graduation. Under the old student rules it was understood that law students might not meet these full criteria due to the nature of their courses and the restrictions of practising in a particular jurisdiction. Nevertheless, the UK Border Agency (UKBA) recognised that law students should not necessarily be excluded from the UK. The intentions of a foreign national who sought entry or requested an extension of stay to pursue a course of legal studies in the UK were reviewed carefully. Consequently, the immigration directorate instructions noted that a prospective law student should ideally intend to teach law, act as a consultant on British law in his country of residence, or be a student of comparative law. Fair enough. If the aim of an immigration system is to allow for migration to and from a country in a manner which benefits that country without displacing a resident workforce, it would make sense to ensure that students training to become lawyers in the UK are those who will be practising in the English common law jurisdiction, for example British nationals or those settled in the UK. However, a full training in UK law is beneficial to legal practice in many countries. Furthermore, it is too simplistic to assume that only British nationals would be interested in practising law in the UK. Enabling the UK legal profession to operate as a meritocracy regardless of nationality could only improve the quality and calibre of its practitioners. Before the introduction of the PBS this seemed to be the adopted mindset, and there were concessions that lay outside the rules to allow both for law students to continue their training in the UK and for foreign lawyers to practise law in the UK in a self-employed capacity in partnership with English solicitors, as a partner with a firm of foreign lawyers, or as a sole practitioner. One of the concessions in place was for bar students. Barristers are not required to study full time by the Council of Legal Education. In agreement with the Home Office, law students accepted by one of the Inns of Court did not have to meet the full-time study requirement, nor was reference to the RETP a requirement. Any barrister who wishes to exercise rights of audience before a court must have completed 12 months’ pupillage. Before the PBS, barristers who could demonstrate that they had been accepted on a pupillage scheme with a recognised chambers (paid or unpaid) could be treated as students under the rules, subject to certain criteria. Another concession enabled articled clerks to remain in the UK as students to undertake sponsored pupillage employment with the Crown Prosecution Service following their two years’ articles. Remaining in the UK as a bar student and pupil was therefore an option for a non-EEA national before the introduction of the PBS. Shanti Faiia, trainee solicitor at Laura Devine Solicitors, contributed to this article
The first Sikh to be appointed a judge in England and Wales topped the roll call of lawyers named in the New Year Honours list for 2010. Retired circuit judge Mota Singh QC (pictured), a barrister who sat at Southwark Crown Court, received a knighthood in recognition of his services to the administration of justice, community relations and the voluntary sector. Two circuit judges, barristers Keith Cutler and David Fletcher, received CBEs for their services to the administration of justice. Tooks Court barrister Peter Herbert was given an OBE for services to equality, diversity and human rights. Solicitor Helen Morris, a Crown advocate with Merseyside and Cheshire Crown Prosecution Service, received an MBE, as did Berly Cox, an administrator with the Children and Family Court Advisory and Support Service in North Yorkshire. Herbert, who chairs the Society of Black Lawyers, said: ‘Although we no longer have an empire, so the name of the award should be changed, it is good to be rewarded and demonstrates that service does make a difference and helps make the profession more diverse.’
Nicholas Longford, Chair, Resolution James Carter (see  Gazette, 17 December, 9) misrepresents Resolution as opposing government plans to extend family reporting. In fact, Resolution is fully supportive of greater openness and transparency in the family courts. Our problem with the government’s proposals is that they pave the way, without proper parliamentary scrutiny, towards the automatic publication of sensitive personal information (medical or psychiatric reports, for example). Such measures are unlikely to be in the interests of the children and families concerned. Parliament should carefully consider the need to protect individuals and the respective benefits to society before making such a change.
Turnover: £120m (2008); £115m (2009); £120m (2010) Average profits per equity partner (PEP): £572,000 (2008); £418,000 (2009); £650,000 (2010) Net profit: £34m (2008); £25m (2009); £39m (2010) According to these figures, the firm has returned to pre-recession levels of revenue generation, and has bettered its pre-recession profitability (for simplicity’s sake, we can perhaps assume that the collapse of Lehman Brothers in mid-September 2008 is where the recession began). This brings about two interesting points. Firstly, the firm’s London performance is very good when compared with its City peers (those firms with revenues around the £120m mark). Baker & McKenzie’s PEP compares favourably with much bigger City firms hovering just outside the magic circle. Secondly, and perhaps most remarkably, the firm has generated £78,000 more in equity partner profits in 2010 than it did in 2008, despite revenues being identical. This must presumably be down to cost-cutting. Commenting on the firm’s global results, executive committee chair John Conroy acknowledged that Bakers has employed legal and business process outsourcing over the past year to flatten costs, and will do so again over the coming year. But the firm has benefited from outsourcing to its own offshore unit in Manila for some years. What has also served to reduce the firm’s costs has been the redundancies made in the firm’s City office after the Lehman Brothers collapse. In January 2009, 20 associates lost their jobs, and in March 2009, the firm announced that further cuts would be made, froze pay, and scrapped its all-staff bonus. London managing partner Gary Senior blamed the ‘exceptionally challenging’ economic climate when informing staff of the measures. This sort of action was by no means uncommon among firms at the time, and those that did cut have tended to fare better with their financials this year (if, by fare better, we mean protect partner profits). The Bakers magicians in London seem to have fared better than most. For more News blogs go to http://lawgazette.co.uk/blogs/news How do you conjure up £78,000 more pay for each of your equity partners without generating any more income than you did previously? Well, for a start, try asking the guys in Baker & McKenzie’s London office for a lesson in cost-cutting.The firm, founded in Chicago but now with a strong presence in all major world business centres, is currently deemed the biggest law firm in the world by revenues. But there lies a more interesting story closer to home. The firm’s London office released its financial results yesterday. For the sake of quick comparison:
I have just received notification of a proposed order of the District Court of Nevada and been advised that a class action has been brought on behalf of people who rented cars at Las Vegas and Reno airports between 3 June 2007 and 30 September 2009, on the basis that they were allegedly overcharged. I am told that the court is being asked to approve a settlement whereby I will be entitled to a certificate worth $10 towards a future rental, and I am given the chance either to accept this or to object. I am then advised that, if settlement is reached with regard to this and related settlements involving car rental brands, the plaintiff’s counsel will apply to the court for a total award of attorneys’ fees, costs and expenses not exceeding $1,440,000 ‘which application the various defendants have agreed not to oppose’. Could I possibly be practising in the wrong jurisdiction? P A Jewitt, Nicholson Portnell, Hexham, Northumberland
Consumers are finding it too hard to win compensation for misleading and aggressive trading practices and the law must be reviewed, the Law Commission said today. Opening a consultation on the matter, the commission said that routes to redress for ripped-off consumers are ‘difficult’ and ‘far from clear’, and many victims of scams are ‘among the most vulnerable in society’. It said that reform will be ‘limited and cautious’, but has proposed introducing a new Consumer Act to cover private law actions between consumers and businesses. Business-to-business transactions will not be covered. Under the existing law, governed by the Consumer Protections from Unfair Trading Regulations 2008, consumers do not have a right to compensation, and must instead rely on ‘complex’ and ‘confusing’ private law actions, the commission said. David Hertzell, the Law Commissioner leading on the project for England and Wales, said: ‘The Law Commission believes consumers should have a clear right to redress for misleading and aggressive commercial practices. ‘Simplifying the law will give more confidence to consumers and help drive rogue traders out of the market place, where currently they damage the reputation and livelihood of good, honest businesses.’ Gillian Guy, chief executive of Citizens Advice, said: ‘These proposals are valuable and will help to fill gaps in consumer protection law, where bad practice and downright rip-offs so often slip through the net.’ The Law Commission cited research by Consumer Focus suggesting that two-thirds of the population have been targeted by unscrupulous traders. The consultation closes on 12 July.
Magic circle outfit Allen & Overy has been rewarded for rapid worldwide expansion with a jump in income – but has warned there are difficult times ahead. The firm, headquartered in London, today announced half-year turnover of £582m, up 11% on this time last year. The results show an improvement on the 7% increase reported for the 2010/11 financial year and reflect a six-month period when new offices were opened in Washington, Casablanca and Jakarta. These markets, along with Australia, France and Germany, have formed the basis for the strong performance. Wim Dejonghe, managing partner, said: ‘We have delivered a healthy performance in the first half of the year, however with the Eurozone sovereign debt crisis and the US credit rating downgrade, we expect the second half to be slow. Our strategy of expansion into emerging and high-growth markets is paying off and we will keep investing in them. ‘The office opening in Casablanca makes us the first law firm of our kind to set up in Africa, broadening our reach in yet further markets.’ The firm now employs more than 5,000 staff, including around 500 partners, working in 39 offices worldwide – 11 of which have opened in the last three years.
Let me say at the outset, I am not a luddite. My firm is quite happy to work in a paperless environment and we have for many years been asking the Crown Prosecution Service why we cannot receive evidence by electronic means. In fact, our first request mentioned floppy disks! However, I must comment on the statement of David Jones, director of the CPS’s efficiency programme, that all criminal defence firms need to do is join the secure email system (CJSM) (see  Gazette, 8 December, 1). Those unfamiliar with CJSM may imagine some type of snappy, intuitive, email interface similar to other online email providers, such as Gmail or Yahoo! Mail. If only that were so. The truth of the matter is that the CJSM system software is several years past its ‘sell-by’ date and I do not believe it is now fit for purpose. Problems start as soon as you access the site. There is a notice on the log-in page telling you that users of Internet Explorer 8 or 9 (easily the most commonly used software for internet access) may experience problems. They will. CJSM does not work with IE8 or 9 without switching to ‘compatability mode’. It does not work very well with Google Chrome. The warning of this problem has been there for over six months, but no improvements to the interface have been made as I write. I could go on at length about the slowness of the secure email system, the poor search system, the needlessly complicated way of assigning an email addressee from one’s contacts, and even the way in which contacts are displayed. There are other problems too. My main concern, though, is the lack of memory. We are a small firm in a small market town. We use the system to email the police for bail-back information, and we send all correspondence to the Crown court and CPS via the system. The vast majority have been simple emails with no attachments. In the first six weeks of using the system, we had used 25% of the available memory. The emails cannot be forwarded to another email system and thus we are left with no choice but to print off the email and then delete it. So much for a paperless office. Once we start receiving electronic files, I anticipate we will run out of memory within three months. Larger firms will be experiencing difficulties within weeks. We actually welcome this new way of working in the criminal justice system, but for it to be a success, the CJSM system needs a major overhaul and upgrade before the Transforming Through Technology project kicks in from April. It is my understanding this is unlikely to happen. John Storer, Criminal Defence Associates, Boston, Lincs
Government moves that would further undermine open justice have been attacked by the very lawyers on whom ministers rely to support the existing system of closed courts. It’s a major setback for the security service, which persuaded justice secretary Kenneth Clarke to endorse the reforms in a green paper on justice and security published last October. The MI5 proposals were prompted by the case of Binyam Mohamed, a British resident detained by the US at Guantanamo Bay. In response to a claim that Britain had been complicit in his rendition, detention and torture, the government agreed to settle the case and pay Mohamed compensation – said to be more that £1m – rather than disclose intelligence-related material to him and around 15 other former detainees. To avoid this dilemma in future, the green paper proposes extending what are called closed material procedures to all civil claims, not just those involving national security. Under these procedures, ministers can withhold sensitive evidence from a party to litigation in which the government is involved. Instead, the evidence is shown to the court and to a special advocate, an independent lawyer – usually a barrister – who has to find a way of representing the other side’s interests without telling that party what the government’s evidence says. Now, though, the special advocates have blown the whistle. In a response to the justice and security green paper signed by Angus McCullough QC and 56 other special advocates, the government’s proposals are dismissed as ‘insupportable’. McCullough is an experienced special advocate and the paper has been published on the excellent human rights blog he co-edits for his chambers, 1 Crown Office Row. The QC’s opinion of the government’s proposals is shared by pretty well everyone who does this kind of work. More than a third of the 69 special advocates on the attorney general’s list have not done any cases at all while others have done very few. Of the third that do most of the work, all agree that, despite their efforts, closed material procedures ‘remain fundamentally unfair’. McCullough and his colleagues say it’s one thing to argue that the unfairness and lack of transparency inherent in these procedures should be tolerated in areas such as deportation appeals and control order proceedings for reasons of national security. ‘It is quite another,’ they continue, ‘to suggest that government ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party. ‘The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the green paper and, in our view, none exists.’ What are the alternatives? First, the special advocates support the present rules of public interest immunity, under which a judge must decide whether the public interest in withholding the evidence is outweighed by the public interest in the proper administration of justice. In such cases, material excluded cannot be relied on by either side. Material that is included must be fully disclosed by the government. The special advocates rightly dismiss the green paper’s argument that courts would be better off being able to see all the material under a closed procedure than they are with part of the evidence excluded on the grounds of public interest. As Lord Kerr, a justice of the Supreme Court, has said, ‘evidence which has been insulated from challenge may positively mislead’. Second, they recommend consideration of arrangements in the US under which directly instructed lawyers acting for terrorist suspects are afforded a substantially greater measure of trust and confidence than their UK counterparts and can apply for security clearance. The US experience is ignored in the green paper’s section on international comparisons. But perhaps the most depressing thing of all about the government’s green paper is its air of unreality. Understandably, security service lawyers have little experience of litigation in the outside world. So, as the special advocates point out, the green paper makes no attempt to consider the practical implications of taking a procedure designed for appeals against coercive state action – such as deportation or controls on movements and assets – and applying it to the trial of a civil claim. How, for example, will a litigant be able to obtain funding to bring or defend a claim – either under legal aid, a conditional fee agreement, through after-the-event insurance or from a trade union – if the litigant’s solicitors cannot see the evidence needed to assess the chances of success? How can solicitors advise a client when to settle? How could an unsuccessful litigant be expected to pay the government’s costs? It’s bad enough that I, as a journalist, would not be able to report hearings held under closed procedures or the resultant judgments, except in anodyne terms. What is much more serious is that lawyers acting for non-government parties in such cases would have no access to these decisions either. Imagine bringing or defending a claim without being able to find out whether there is a precedent from the High Court, the Court of Appeal or the Supreme Court that may be on all fours with the facts of your case. As Dinah Rose QC asked in a lecture last November, ‘how is the development of the common law to be reconciled with the accumulation of a body of secret case law, accessible only to the government and a small group of special advocates?’ Time for ministers to think again.
I write in response to the letter ‘Raw deal for LDPs?’, concerning the process of passporting to an alternative business structure. To clarify, there is no fee for a non-lawyer manager LDP which elects to transition to the ABS regime ahead of the transition period (which the author is correct is delayed). A fee is only charged if the NLM LDP is changing in such a way that it is no longer the body we currently regulate, for example adding new non-lawyer managers or owners, a significant change to the business model, or a substantial increase in staff offering legal services. If a change of this type forms part of the application then we would view this as a change to the body we currently regulate and so charge the ABS application fee. Ann Morgan, ABS team manager, SRA