Westminster update: 'growing case for review' of Legal Services Act

What you need to know

1. Legal regulation: "growing case for review", says lord chancellor

The lord chancellor has set out his views on a possible review of legal services regulation in a letter published on Wednesday 8 May in response to the Justice Select Committee’s recommendations.

His comments follow the committee's one-off inquiry last December, where they took evidence from all major legal representative bodies and the corresponding regulators. The committee – chaired by Sir Bob Neill – recommended a series of reviews and changes to the current regulatory landscape.

While the lord chancellor acknowledged it was not his place to comment on many of the topical issues raised throughout the sessions – for example, the internal governance rules and CILEX’s proposals to re-delegate its regulatory function – he said he believed there is a “growing case for a review of the Legal Services Act”.

The lord chancellor has tasked his officials with considering what an appropriate time to conduct a thorough review would be.

He used the correspondence to reaffirm his belief that “the overwhelming majority of legal professionals uphold high ethical and professional standards” and reassured the committee he was watching the Post Office Horizon Inquiry closely.

He added that the SRA is undertaking its own investigation into the Post Office scandal, which he expects “to be finalised after the inquiry concludes”.

He was clear in his letter that he will not be undertaking a review of the Legal Services Board, given the need to prioritise review of public bodies based on risk profile, size of budget, and opportunities for efficiencies.

He expressed a positive working relationship with the regulators and representative bodies and stressed his desire to continue working closely with the Justice Select Committee.

2. SLAPPs Bill: amendments address some Law Society concerns but others remain

An updated version of the Strategic Litigation Against Public Participation Bill (SLAPPs Bill) passed its committee stage on Wednesday 8 May, after amendments brought forward by its sponsor Wayne David (Labour) were agreed by MPs.

The amendments voted through addressed two areas of concern that we had raised with Wayne David, the Ministry of Justice (which is backing the bill) and other MPs.

The definition of 'public interest' has been brought more closely in line with existing legislation, while the test for determining a SLAPP has been tweaked to ensure it is more objective.

Another area we have been raising was addressed by the shadow justice minister Alex Cunningham.

Cunningham pushed the government on its justification for not amending clause 1(1)(b) which, as drafted, he noted will allow claims to be struck out if “the claimant has failed to show that it is more likely than not that the claim would succeed at trial”.

He said that he was “mindful of the Law Society’s concerns that this measure will shift the onus of proof to the claimant in applications to strike out a claim" and asked both Wayne David and the minister to consider whether the clause was workable as drafted.

The minister, Mike Freer, did not respond in substance on this point, but expressed his view that our proposed amendment is not needed.

Long-time campaigner for stronger legislation in this area Sir David Davis (Conservative) proposed a new purpose clause to give judges guidance on interpretation and tell them what the high priority of the bill is.

After reassurances of a meeting with the minister to discuss his concerns further, he withdrew his amendment.

Having passed committee stage, the bill will next have its report stage on 7 June.

We will continue to engage with the government and the shadow justice team to ensure that the drafting achieves the bill’s objectives in practice.

3. Attorney general questioned on victims and prosecutions

The attorney general, Victoria Prentis, took to the dispatch box to answer oral questions on Thursday 9 May, most of which focused on victims and prosecutions.

The attorney general said that tackling violence against women and girls is a priority for the government, but was challenged by several MPs about the prosecution rates on this issue.

Wera Hobhouse (Liberal Democrat) said that although referrals from the police have risen for domestic abuse, both charging rates and prosecutions have decreased in the last quarter.

The attorney general said that generally prosecution numbers are going up, but agreed there is more to do around domestic abuse cases.

Chris Elmore (Labour) asked how many prosecutions have taken place under the Online Safety Act 2023 for crimes such as cyber-flashing, deepfakes and revenge porn.

The solicitor general said that the CPS delivered the first conviction for cyber-flashing within weeks of the new offence becoming law.

Sir Bob Neill (Conservative) said that there are large delays in sexual offences cases being heard.

He argued that this is largely because of legal aid fees, with prosecution fees lagging behind those for defence barristers. He said that there is a gap of around £500 in the brief fee between prosecuting and defending counsel which needs plugging.

The attorney general said justice funding is the territory of the lord chancellor, but that funding is not the only issue here:

"They are draining cases to be involved in, and they are listed very tightly at the moment because of the pandemic backlogs, as he mentioned. That leads to tensions with listings and with the judiciary, which can make it very difficult to do this area of work relentlessly. I have nothing but praise for the barristers who are engaged in it."

Coming up:

We are working on a number of bills in parliament:

• Victims and Prisoners Bill began its report stage in the Lords on 16 April
• Renters (Reform) Bill will have its second reading in the Lords on 15 May
• Criminal Justice Bill will begin its report stage in the Commons on 15 May
• Leasehold and Freehold Bill will have its report stage in the Lords on 5 June
• Sentencing Bill will have its committee stage in the Commons, date to be announced
• Data Protection and Digital Information (No. 2) Bill will have its report stage in the Lords, date to be confirmed
• Arbitration Bill will have its report stage in the Lords, date to be announced
• Strategic Litigation Against Public Participation Bill will have its report stage in the Commons on 7 June
• Post Office (Horizon Systems) Offences Bill will have its second reading in the Lords on 13 May
• Litigation Funding Agreements (Enforceability) Bill will have its report stage in the Lords on 4 June