Diary news plus insights, commentary and appointments from the legal world

27 December 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK:

SHORT THOUGHT FOR THE WEEK: More law, less lawyers?

Analysis published just before Christmas highlighted that one of the contributory factors to the UK’s miserable last economic quarter was a decline in the law sector. Whether this was truly a bad thing for the overall well-being of the nation is a matter for reflection. But, whatever, it was certainly a blow for the legal sector.

Add in comments made earlier this month by legal IT guru Richard Susskind and you certainly have food for thought to accompany the remains of your left-over turkey and Christmas pud. “The future will not be a turbo-charged version of today,” says Susskind.”Instead, we will see an entirely new era of the AI-empowered client…In years to come, the principal role of AI in law will not be to enhance today’s largely unaffordable legal and justice systems. It will be to place the law in the hands of everyone.”

So while the law can hardly be envisioned to play less of a role in our lives it may be, as Susskind suggests, that individuals (courtesy of AI) do more of it for themselves.

“In law, as elsewhere, the revolutionary impact of AI will not be in sustaining 20th-century providers,” continued Susskind, “but in enabling citizens and organisations to undertake complex tasks without relying directly on human experts.”

And on that happy note the LegalDiary wishes you the best of everything for 2025.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

on sanctions, Links lost and Kids Law on public inquiries

+ CONTRIBUTED ARTICLE OF THE WEEK

THE PROPOSED CHANGE TO SURROGACY REGULATION by Sophie Croft

+ LEGAL COMMENT OF THE WEEK

on registering children for school, the SRA annual report and closing AI loopholes

LEGAL DIARY OF THE WEEK

Links Process Sale

The news that Linklaters has sold off Hackwood Secretaries Ltd (which provides process agent services) is no doubt a small but significant event in the history of the top City of London firm. The lucky buyer is Law Debenture and the historic name of Hackwood is being lost to be replaced by the frankly anonymous LDCS Process Agent Ltd.

According to Denis Jackson, the Law Debenture Chief Executive Officer, the acquistion, “Builds on our well established and trusted global book of Process Agent Services, marking a further step in expanding Law Debenture’s capabilities within Independent Professional Services.”

Actually it does sound rather impressive. “Managing thousands of live appointments, our global team brings 100+ years in cumulative experience and quality service delivery…our global offices provide availability throughout the day and across all our jurisdictions. Speed, flexibility and responsiveness make us the UK’s leading process agent and the long established Law Debenture team looks forward to working closely with Linklaters to ensure a smooth transition of the business.”

We trust that Links won’t come to regret the loss too much. All that ‘speed, flexibility and responsiveness’ is something to cherish.

Sanctions – Don’t you Just Love them?

We are grateful to Hogan Lovells’ International Trade and Investment News for a reminder in this holiday period of where we are right now in the economic and legal war against Russia and its allies.

While Donald Trump loves the word ‘tariffs’ it could be said that the EU (and the UK too) loves the word ‘sanctions’. Whether they work and make any significant difference to Russia’s fighting capability is another matter but at least it is a way of appearing to be doing something as a gesture of opposition to monstrous regimes.

Hence ten days ago the EU adopted its 15th package – yes, 15^th! – of sanctions against Russia designed to expand the sectoral and financial restrictions applicable to Russian ‘persons’. The EU has also adopted new sanctions targeting Belarus, Haiti, Sudan and North Korea.

In fact, as of now almost 2,000 ‘persons’ and 496 entities are subject to asset freezing measures under the EU Russia sanctions. On top of that an additional 52 vessels involved in circumventing sanctions by transporting warfare material and oil to the list of vessels have been made subject to a ban on port access and services.

Added to that there are now 32 military-related entities including not only Russian but also Chinese, Indian, Iranian, Hong Kong, Serbian and U.A.E. companies on the list of entities which cannot benefit from exemptions and authorizations related to exported restrictions. Given that India and the UAE (and maybe even Serbia) are notionally friendly states one might be tempted to ask whether the West is going the right way about this. But at least it is creating work for lawyers.

Sanctions 2 Watch Out for Sleight of Hand

Given the growing phalanx of sanctioned countries, businesses and individuals (as above) Thomas Lobert, solutions consultant at Descartes Systems Group has been reflecting on the consequences.

“We are currently seeing a change in sanctioned lists on a frequent basis, even as regularly as every day.” he says. “These rapid changes, which can be additions and updates to trade compliance, make it difficult to track and verify the ownership structure of such sanctioned entities. As a result, compliance teams face challenges in keeping up with daily changes to sanctioned lists. Be it through limited resources, or reduced capacity, it is becoming more difficult for these teams to verify ownership structures, increasing the risk of overlooking crucial amendments and potentially violating trade compliance regulations.”

The reality is that an industry has now grown up in how to evade, disguise or just discombobulate sanctions regimes. So how do lawyers sort out the goodies from the baddies? “Always remember,” cries Lobert. “Businesses that are transparent and proactive in providing necessary data demonstrate a commitment to compliance. Otherwise, opacity may be viewed as an attempt to hide non-compliant activities.”

Having access to reliable data is crucial for compliance teams to make informed decisions and to ensure that the organisation is not inadvertently engaging in activities that could lead to sanctions.

And that is where, potentially, AI can play a part. “Through limited resources, or reduced capacity, it is becoming more difficult for [legal] teams to verify ownership structures, increasing the risk of overlooking crucial amendments and potentially violating trade compliance regulations,” says Lobert..

The answer must surely lay in AI – mustn’t it?

KIDS LAW ON PUBLIC INQUIRIES

KIDS LAW An Alternative to Wallace & Gromit?

The marvellously amusing new Wallace and Gromit animation on Christmas Day put the spotlight on policing and how to remedy a botched investigation. What it might have featured was a public inquiry into why the police were guarding a turnip rather than a diamond – but that’s a matter for another time.

Nonetheless, given current concerns about the multiplicity of public inquiries with their accompanying length, cost and (all too often) lack of effective follow-up it is timely that the Kids Law series should have selected the topic for its latest broadcast. The guest expert on the subject is Flora Page of 23 Essex Street Chambers who recently delivered the Next 100 Year’s 2024 Heilbron Lecture.

As the Kids Law team observe in connection with the Post Office investigation, “Yesterday – 17 December 2024 – brought the curtain down on almost three years of evidence and the end of the inquiry into the Post Office Horizon scandal with a report, however, not expected to be ready for “many months.”

So the topics investigated include

• Why inquiries are so important when there has been a major tragedy 
• How they ensure organisations are held accountable for their actions Flora Page’s own role in the Post Office horizon IT Inquiry and why lawyers are involved?  
•  How the voices of children and young people can be heard in an Inquiry

All sounds very worthwhile and you (and even your children) can catch it on your usual Podcast Platform.

CONTRIBUTED ARTICLE OF THE WEEK

THE PROPOSED CHANGE TO SURROGACY REGULATION

by Sophie Croft

The news that surrogacy reform may move up the Government’s agenda will be welcome among family lawyers and fertility professionals. Baroness Meron met the Law Commission last month to discuss their surrogacy report and recommendations for modernising surrogacy laws, published in March 2023. A long overdue meeting, but it is positive to hear that after almost two years, surrogacy reforms are back on the agenda.

The primary recommendations are:

• The surrogate’s spouse will not be a legal parent – at present, a surrogate and her spouse, if she is married at the time of the baby’s birth, are both automatically the legal parents until a Parental Order is granted, transferring parenthood to the intended parents. 
• Surrogate expenses to be limited to medical and wellbeing costs, recouperation of lost earnings, pregnancy support, and travel, to ensure the surrogate is cared for but to prevent exploitation of intended parents.
• Parents will be able to obtain legal parenthood from the birth, rather than having to wait for a parental order to be approved, which can take 6-12 months.

Arguably, this final point is the most important. At present, parents cannot obtain legal rights until the child is born and they begin the process of applying to Court for a Parental Order. This is a complicated and long-winded process that, at best is overwhelming for parties involved, and at worst, entirely off-putting for people who wish to become parents via surrogacy.

This issue has recently come to light in a case concluded in November 2024 which involved a surrogate mother who suffered respiratory arrest during a caesarean section resulting in brain injury and cognitive impairment. As a result, she could not provide the required consent needed to obtain a Parental Order. The Court therefore needed to consider whether a surrogate’s consent could be dispensed with. In this case it was concluded that the surrogate could not provide consent and it was in the child’s best interests to make the Parental Order. One key part and influence of this case was the surrogate’s partner who explained that she had been a surrogate for 20 years and would agree to the making of the Parental Order is she were able.

Whilst the Judge ruled that the Parental Order be granted, the process and experience for the intended parents was stressful. Reforms in this area to allow a new pathway to legal parenthood in domestic arrangements would mean the intended parents could be recognised as the legal parents from birth.

The outcome of the Government’s discussion with the Law Commission is yet to be announced but we eagerly await the written response.

Sophie Croft is an Associate at Stowe Family Law

LEGAL COMMENT OF THE WEEK

TOPIC: The Government’s proposals to close loopholes protecting AI firms over child abuse images

COMMENT BY: Martin Noble, Intellectual Property & Media Partner, Freeths

“This is a welcome step in the continuing battle against the creation and distribution of online child abuse images. It aims to widen the net to include those ‘facilitating’ the creation of child abuse images by ensuring software companies take steps to prevent this type of crime. It remains to be seen how far-reaching the law will be – will it impose an obligation on all software companies to consider whether their software is capable of being used in a particular manner or will it be restricted to specific types of AI image generators? Either way, it will be important to keep up with the pace of change in terms of AI technology and also whether closing this loophole drives the problem elsewhere.”

TOPIC: The proposed register to identify children not in school

COMMENT BY: Philip Wood, Senior Associate specialising in education law, Browne Jacobson

“Too often, children have fallen through the cracks of the education system due to the lack of a national register that identifies those who are not in school, so the introduction of this is a no-brainer.

“Given the steep rise in home-schooling since the pandemic – government data shows there has been a 20% rise in home-educated children over the past year – this is a long overdue policy.

“However, creating a register alone won’t be enough to protect children’s welfare and rights to education. Recent safeguarding reviews regarding children who have been victims of abuse indicate the relevant authorities have been aware of their education circumstances, with missed opportunities for intervention being the crux of the problem.

“Having a register therefore isn’t a panacea to resolve those safeguarding issues. Instead, it must be used as part of a local authority’s armoury of wider powers.

“With this Bill coming hot on the heels of proposals to usher in major local government reform, as set out in the English Devolution White Paper, central government must also support local authorities in maintaining their statutory duties in areas such as children’s safeguarding during any restructuring process in the short and medium terms.

“One of the best ways that government can provide support is to set out how it intends to reform special educational needs and disabilities (SEND) policy and funding, with 13% of families stating that poor SEND provision is behind their decisions for home education.”

TOPIC: The SRA Annual Report

COMMENT BY: Anna Bradley, Chair of the SRA Board

“These annual reports give everyone an insight into the core work we do to protect consumers and drive confidence and trust in legal services.

‘It also shows where things are changing in the legal sector, including how risks are shifting. Whether that is the significant increase in failing firms and calls on the compensation fund, rises in complaints about firms potentially abusing the litigation process through SLAPPs, or serious issues arising with some firms involved in high volume claims.

‘We will need to continue to be fleet of foot to stay on top of emerging issues. We are already doing more proactive visits and checks on firms. Improving how we use our data to spot patterns will help us target our proactive work, focusing on areas and firms which present the greatest risk to the public.”

WE hope that you have found this edition of the LEGAL DIARY interesting (and even useful). If so, please circulate it to colleagues.

In any case, please continue sending your diary-type stories, legal comment and insights plus latest appointments to fennell.edward@yahoo.com

And best wishes for the the New Year!