People, Parliament, Executive & Judiciary

As a lawyer, when I think of the Supreme Court ruling with regard to the lawfulness of the Prime Minister’s actions, it makes me feel proud that the Supreme Court is Supreme and has exercised powers over the Parliament and the Executive/Cabinet. Everyone in the legal profession may be proud that they belong to this profession, which produces the Supreme Power.

It is a fundamental principle of the sovereignty and democracy that the Parliament, Executive and Judiciary should remain independent and distant. An unusual situation has arisen in British democracy. Britain is proud of Magna Carta, the whole world admires our system and follows as well. Westminster Parliament is known in the world as the mother of Parliaments. The judicial decisions are being followed all the over the world. However, in this scenario I am beginning to wonder whether the Parliament has used or abused the judicial arm of the democracy to fulfil its agenda and motives. This judgement and the events preceding to the judgement can create various problems to taint our system in the years to come. Parliamentarians and other instructed parties instructed outside Parliament can time and again make applications in the Court to curtail the actions of the Executive. In the event of a war situation, a serious threat from an enemy which is imminent, the anti-war lobbies and eccentric Parliamentarians can go to Courts to argue and curtail/delay/ frustrate the Executive/Cabinet from protecting our Nation. By the time a final decision of the Supreme Court comes, the enemy would have executed the threat.

Another dangerous precedence open by this Supreme Court Judgement is that the independence of Judiciary can be interfered with. Such an important Judgement curtailing the Executive, the people who delegated the sovereignty to the Parliament and through the Parliament to the Executive is being frustrated to carry out their decisions. This will open the Judiciary and the Judges to be subjected to scrutiny. Questions are going to be raised in the people’s minds, whether these 11 Lord Justices are more inclined to remain or leave! It can even be extended to question whether Lord Justices from Scotland will overrule the judgments from the Scottish Courts! Will the Lord Justices from Wales be absolutely independent against the will of the people of Wales who overwhelmingly voted to remain!

Investigative journalists would like to probe into the Judge’s background and also to take statistics of Judgements of these individual judges who delivered Judgements for or against the Government in past. We should not lose sight of the fact that Judges are also human however independent they try to be.

When I think about the consequences of the Supreme Court Judgement, I am wondering whether it was a worthwhile exercise of this Supreme Court action and what have we achieved and at what cost? We have achieved another four weeks of Parliament sitting, an excitement and enjoyment of the opposition supporters and the anti-Boris Johnson lobby and nothing else. The honourable independent Judges of Great Britain have been put into a risky position to be subjected to anxious scrutiny from the Public and the media.

The noble traditions and the pride of having an unwritten Constitution has been exposed to create doubt. Previous Prime Ministers never openly and personally criticized the then current Prime Minister. It is a noble tradition. When a Prime Minister is abroad, opposition leaders not attacking the Prime Minister locally is a noble tradition. A previous Prime Minister not filing a case and becoming a claimant against the current Prime Minister is a noble tradition. All these traditions have been broken. Are our Politicians and traditions still Noble?

By the present actions of the Parliament, Executive, and the Supreme Court interfering and expressing opinion on an act of a sitting Prime Minister, has kick-started the question whether the unwritten Constitution should be abandoned and a proper strict written Constitution be given birth?

Our great Nation Britain, has survived great two Wars and terrorist attacks and still surviving as a great nation in the world. I am a strong believer that this is a blessed country because thousands of Christian missionaries had gone all over the world and carried out charity work, education and also spread the word of God. This nation is still prospering from that blessing of God. May God bless our great United Kingdom. ■

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Solicitors: are you ready for the changes to the SRA’s Code of Conduct?

Reprinted from the October 2019 Bill and worth re-reading

On 25 November 2019 the Code of Conduct in the SRA Handbook 2011 (the Code of Conduct 2011) will be replaced with two new codes of conduct – one for solicitors and one for regulated firms. Are you ready?

In this article, James Robins and Ivan Roots of Womble Bond Dickinson’s professional risks team take a high level look at the changes being implemented and the impact upon solicitors.

The Changes

The 2011 Handbook is being replaced by the 2019 Handbook and the 10 mandatory principles have been cut down to 7 principles.

Legal professionals must act:

■ in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice ■ in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons ■ with independence ■ with honesty ■ with integrity ■ in a way that encourages equality, diversity and inclusion ■ in the best interests of each client

In broad terms, the aim of the changes is a drive towards ethics based principles of practice, rather than adhering to a full set of black and white rules. The focus is now very much upon the behaviour of the individual, including a personal obligation to report breaches; the rules send a strong message that the solicitor will be personally accountable for any breaches.

What does this mean for you?

Solicitors will need to:

■ Review the 2019 Handbook (note that the current version on the SRA website is not final and may change before 25 November 2019). ■ Read the SRA enforcement strategy and linked ‘topic guides’ for a summary of the main mitigating and aggravating factors the SRA will take into account when considering cases. ■ Understand the personal obligation to report: –Solicitors must report a reasonable belief that there has been a ‘serious breach of the standards’ by your own behaviour, or that of other solicitors you work or deal with. –The obligation to report extends to other legal services regulators such as CILEX. –Reports must be made promptly – early engagement with the SRA is key. –Document anything which involves personal judgment, such as a decision not to report, or the timing of any report made, so that this can be justified to the SRA if necessary. ■ Read your firm’s social media policy. Be alive to issues such as client confidentiality when using social media. Firms and In-house legal teams should:

■ Review internal policies and procedures, in particular whistleblowing and reporting breaches policies, so that they reflect the SRA’s enforcement strategy and the new obligation to report ’serious breaches’. ■ Ensure that members of the in-house legal teams are aware of their personal obligations in the new Handbook, the reporting expectations and the reporting procedure.

Comment

The SRA has confirmed that the 2019 Handbook is designed to be more flexible, allowing “solicitors greater flexibility in how they work – making it easier for people to get help”.

However, with this flexibility comes increased risk as the focus by the SRA on the conduct of solicitors outside work as well as in practice will inevitably lead to an increase in prosecutions. There is a pattern of the SRA taking an extremely tough approach, with little room for second chances. In 2018 alone, the SDT ordered that 80 solicitors be struck off the roll. Indeed, the SRA is expecting a sharp increase in the number of cases referred to it in 2020, with the new requirement to report a ‘reasonable belief’ that there has been a serious breach.

The SRA is also anticipating a shift in the nature of cases being brought, with an expected increase in the number of sexual misconduct cases, those relating to the use of social media and cases concerning conduct outside of the professional arena. Indeed, disciplinary decisions handed down since the SRA’s August 2017 Warning Notice illustrate the stance the SRA is likely to take in response to a perceived ‘threat’ to the solicitors’ brand. For example, disciplinary action has been taken against solicitors for posting offensive anti-Semitic comments on Facebook, assaulting paramedics while intoxicated and posting ‘puerile’ comments on social media about cases being worked on.

Firms and individual solicitors can expect increased scrutiny, and more active engagement with the SRA. Those who fail to prepare for these changes are at risk of disciplinary action and unwelcome and damaging publicity. ■

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Why arbitration is being considered the new trend to resolve Intellectual Property disputes

Why arbitration is being considered the new trend to resolve Intellectual Property disputes.

Jurisdiction and neutrality It is important to understand that disputes concerning intellectual property very often involve more than one nationality, and more than one jurisdiction. That is a factor that makes the process complex, involving many difficult decisions such as which jurisdiction will be adopted for the dispute, where it is going to be resolved and by whom.

One of the key features of modern arbitration is its multijurisdiction. In June 1959 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention) came into force. Under it, 161 countries that have agreed to recognise and enforce arbitration awards that are made in any contracting countries.

Arbitration also provides several elements that make the process of resolving disputes neutral. Parties can choose the law that will be used to resolve their dispute, language, and place of the arbitration process. That offers equality to the parties from the beginning, which is important for international disputes when one party can benefit from being a subject of a specific country (no party enjoys a home-court advantage in this case).

Process of Choosing Arbitrators and “Advocate monopoly” Another advantage is that parties are free to choose their arbitrator. That offers reassurance in relation to who is deciding their case, and where both parties don’t agree on the arbitrator, each party can choose one, and both arbitrators chosen can select one more person to decide the case, resulting in a balanced group.

Choosing arbitration as a method of resolving intellectual property disputes also meets the modern trend of getting rid of “advocate monopoly”. As there is no requirement to strictly be a barrister/ solicitor or even have a law degree, there is the possibility for a specialist in a particular field, to be invited to become an arbitrator. There are many examples of people from technical professions who were invited to be an arbitrator and subsequently resolve a dispute connected to highly specialised problems.

Privacy One feature of arbitration in intellectual property disputes, viewed both as an advantage and disadvantage is the option of privacy. Despite the fact that there is no legislation about the confidentiality of arbitration processes in England, there remains an option for the parties to have an express agreement about confidentiality during the process.

Generally, privacy usually acts as the main factor when choosing between arbitration and litigation. That is vitally important in terms of commercial disputes because parties not only avoid the factor of a national court but also use privacy.

With intellectual property disputes, there is quite a different situation. The legal definition states “a patent is open for public knowledge”, as an individual shares his/her idea with the public in exchange for exclusive rights to dispose of his/her intellectual property.

There still might be some situations when parties can benefit from private disputes outside of the court without attracting public attention. But the privacy factor in arbitration can act as a disadvantage when both sides can win from their process being public. Such situations occur when celebrities prefer to have a public dispute about the intellectual rights e.g. to a song sometimes simply to attract public interest to both of them or even when companies such as Apple and Microsoft choose litigation to promote themselves.

Considering that any arbitration award can be easily enforced in court if the party fails to perform what an arbitrator has concluded, privacy may be an important factor when choosing between litigation and arbitration.

Cost Notwithstanding that arbitration is becoming more costly, nevertheless the process is still recognised as a cheaper option to regular litigation. The process of arbitration is usually faster and normally takes only a couple of days for parties to resolve their disputes, contracted to the litigation process, which involves a more complex and longer process of dispute resolution and usually ends up being more expensive.

Right to Appeal The general rule is that an award provided by an arbitrator cannot be challenged. There are a couple of exceptions. An appeal might be permitted if there was a serious irregularity in the decision-making process. However, claims for an appeal from an arbitration award are rarely successful, and the general rule prevails. The fact that there is no right to appeal provides parties to the dispute with certainty in relation to the outcome of a dispute and it avoids the costs of going to court and going through the entire process of appeal.

Practice The World Intellectual Property Organisation (WIPO), created the WIPO Arbitration and Mediation Centre, which contains rules with relation to how arbitration procedures should be conducted when resolving Intellectual Property disputes. The UNCITRAL (United Nations Commission on International Trade Law) also provides directives governing arbitration disputes which may arise in the international commercial context.

Our Conclusion: After evaluating the aspects of Arbitration mentioned and after comparison with the usual Litigation process, we believe that there are good reasons for Arbitration to remain and grow significantly as a process of choice to solve disputes for the future. ■

The hard road to qualification

– a day in the life of an LPC student/Trainee Solicitor

My name is Aa’ishah Sattar and I am currently completing the LPC part time at the University of West London. I am also very fortunate to work as a trainee solicitor with a West London law firm and expect to qualify as a solicitor in the next few months.

It has been very difficult trying to manage my training contract and studies at the same time but the balancing act has enabled me to gain insight and experience, which will help me with the LPC and the work place and allow to gain the relevant skills that a solicitor must have. I understand the importance of being organised and checking my university lecture schedule as I complete all my preparation for University workshops and lectures on the weekend is a factor that looms large in my life.

Clearly, it is very important to stay on top of the LPC. It is a very intense course, and you can easily fall behind on certain topics. I use my weekends to make my notes and ensure my files are organised in a certain way. On the days that I attend the University campus, I go into work early to make sure I complete my training hours which are 42 hours a week as a trainee solicitor and 7.5 hours daily. I start at 8:30am by collecting the DX for review by the partners and qualified staff who assess incoming court communications and review any important court directions. I will then go into the office and start to deal with the firm’s emails. As I am currently completing my criminal seat, I will only deal with criminal matters. My tasks include printing and creating new police station files. I also receive last minute cases where representation is required in the Magistrates court. This means I have to contact the client and review their financial circumstances to assess if they qualify for legal aid and if so, I will complete a legal aid application. I also check to see if any duty solicitors are available to represent the client. In most cases, there will be a duty solicitor available. I will also request case papers for advocates and make sure they receive the documents. As part of my office-based duties, I call clients and complete statements, request further proofs of evidence, chase for any financial documents to be sent to the Legal Aid Agency and take calls. In some cases, led by the senior staff, I review the disclosure that has been sent from the CPS. I would offer my observations on the evidence and consider the nature and strength of the CPS case. Most of this work is achieved by viewing case papers and any multimedia evidence.

As a second-year part time LPC student my core module of property law and practice runs from 3 -7:30pm so my journey to the University starts at 1:30pm which allows me the time to ensure that I have printed all of my preparation work. I go over further reading for the upcoming sessions to make sure I understand the content of the work, and if I don’t, I will prepare questions for the lecturers to answer. I try to be an active participant in the class and make the most of the learning opportunity. I am well aware that if I don’t understand and yet remain silent, I may lose a valuable learning experience. made the process of learning much easier and the lecturers are very supportive.

Of course, it is hard work working towards completion of the LPC, but it’s worth doing something that you love, and you are passionate about. My journey into the law has been a real journey but I am forever very grateful for where I now find myself. The support of the teaching staff at my University has been remarkable and enabled me to learn so much which has in turn meant that I can progress in my office based work where again I have the support and encouragement of the partners and staff. ■

Aa’ishah Sattar LPC student / Trainee Solicitor

Aa’ishah Sattar is a part time second year LPC student at the University of West London who aspires to become a Civil Litigation solicitor.

Women in the law

Acentury on and it still beggars belief that before the introduction of the Sex Disqualification (Removal) Act 1919, I would not have been allowed to carry out my roles as Chief Ombudsman and Chief Executive of the Legal Ombudsman. This ground-breaking piece of legislation has paved the way for women to become lawyers, it has enabled them to take on civil and judicial posts, as well as a variety of other job roles that work alongside the legal system.

At the Legal Ombudsman, almost 70 per cent of our workforce is female and they’re represented across all services. Wanda Goldwag is our Chair of the Office for Legal Complaints; alongside myself, we have female heads of departments and of course women working in all roles across the organisation. Recently, one of our paralegals passed her LPC and gained a Masters in Legal Practice with distinction. I am extremely pleased that the Legal Ombudsman is able to provide such strong opportunities for women.

When I started my career such employment opportunities were unheard of and it was a very stark choice between work and family. Although there are more opportunities for women now, some of the challenges still remain and can shut women out of the workplace, for instance raising a family whilst trying to progress your career, and institutional sexism.

Historically, Ombudsman services have been perceived to be run and accessed by white middle-class males and this can present itself as a barrier to some service users. I am keen to challenge these views. Our service is accessed by a cross-section of people, and I think it is important that our staff are representative of the people who access our services.

Studies have shown that a gender balance and diversity in the workplace benefits productivity and I couldn’t agree more. I am always looking for ways to ensure this is recognised, encouraged and celebrated in the workplace – especially as we are located in the heart of Birmingham, which is a vibrant and multi-cultural city. The Legal Ombudsman actively encourages and supports its staff groups and networks, including: BAME, Disability, Wellbeing Champions, Women’s Network and LGBTQ+. I’m really proud of the work that these groups are doing - they give people a forum to share their experiences in a safe and supportive space, and celebrate contributions they bring to the organisation. As for me personally, I’m really proud of what I’ve achieved over the course of my career. Due to the nature of what I do, I have found myself in many male-dominated sectors and there have been situations where I’ve had to assert myself more than my male counterparts. However, experience has taught me valuable lifelessons, skills and resources that I can then bring to my next role.

Here are my top five career tips that I would like to share with readers:

1. Be open to opportunities: Career progression is not always linear. Seize every life and career opportunity you get and make the most of volunteering and networking events. You never know what new skills you may learn, or people you may meet along the way that will take you on your next career journey. 2. Project confidence in all that you do: Even those who radiate vast amounts of confidence don’t always feel it inside. However, they have learned that acting confident, being professional and having a thorough understanding of your subject eventually leads to true confidence. 3. When things go wrong, learn from your mistakes: We all make mistakes but it is the getting back on your feet and learning from them that counts. If it wasn’t for a mistake, we wouldn’t have discovered penicillin, post-it notes or chocolate (as we know it today). 4. Organise yourself, find your focus and prioritise: Don’t try and do too many things at once; increase your productivity by organising your time and tasks; learn to delegate. This will improve communication with your team and increase efficiency. 5. Be the best version of yourself that you can be: Dress smartly, always be on time, be dependable, show enthusiasm and be good at your job. Have a willingness to improve and further your knowledge and skills; be focused and take accountability for your work. Remain calm and focused, even in high pressured situations. ■

Rebecca Marsh Chief Ombudsman at Legal Ombudsman (LeO)