The ethical identity of law students

This paper uses measures of values, moral outlook and professional identity to explore the ethical and professional identity of law students. We do so in two jurisdictions, surveying 441 students studying in England and Wales and 569 students studying in the US. The survey covers the first and final years of an undergraduate law degree and the postgraduate vocational stage in England and Wales, as well as students in all years of the JD programme in the US. We explore whether law students towards the end of their legal education have ethical identities predictive of less ethical conduct than those at the beginning of their legal education; whether law students intending careers in business law have values and profiles consistent with less ethical conduct than those intending to work for government or individuals; and what factors might explain these differences in ethical outlook. Our findings suggest that ethical identity is strongly associated with gender and career intentions. They also suggest weaker moral identities for students intending to practice business law. Ultimately, our findings support a conclusion that is more nuanced than the predominant theses about the impact of legal education on student ethicality which tend to suggest legal education diminishes ethicality

We Are Legal Aid: Findings from the 2021 Legal Aid Census

Legal aid is a crucial component in the fabric of the justice system in England and Wales. It plays a key role in facilitating access to justice, helping to ensure legal needs are met and that individuals can establish or enforce their rights across various areas of law. Legal aid practitioners assist clients with a wide range of issues, including but not limited to those relating to criminal defence, family matters, education, housing, immigration, discrimination, debt and community care. Yet, the legal aid system is experiencing unprecedented pressures and challenges. A review of the legal aid landscape which elevates the perspectives of those working day-to-day in the sector is vital and long overdue. Pre-existing data on the specifics of legal aid practice has been piecemeal, lacking context and insufficiently able to elucidate conditions on the ground. As such, this report presents and analyses the results of the most comprehensive set of surveys of legal aid practitioners ever conducted in England and Wales. It provides a greater and more accurate understanding of a sector adversely impacted by repeated crises and challenges. In the aftermath of Covid-19 lockdowns and nine years since the enactment of LASPO, legal aid practitioners reveal the true extent of the current state of legal aid in response to the five surveys that make up the Legal Aid Census

Wrong about Rights: Public Knowledge of Key Areas of Consumer, Housing and Employment Law in England and Wales

Over many decades, processes of juridification have brought about huge growth in legal rights, responsibilities and protections, yet citizens appear to poorly understand this ‘law thick’ world. This impacts citizens’ capacity to ‘name, blame and claim’ in the legal domain at a time of retreat from public funding of civil legal services. This article examines public knowledge of rights in key areas relating to consumer, housing and employment law. Drawing on data from the 2010–2012 English and Welsh Civil and Social Justice Survey, the article uses responses to a series of hypothetical scenarios to explore public knowledge of rights and characteristics associated with knowledge. Our findings highlight a substantial deficit in individuals’ understanding of legal rights and responsibilities – even among those for whom particular rights and responsibilities have specific bearing. We also consider what these findings mean for public legal education and the efficiency, efficacy and legitimacy of the law

Pre-strike ballots and enterprise bargaining dynamics: An empirical analysis

Under the model of enterprise bargaining enshrined in the Fair Work Act 2009 (Cth), the primary mechanism for employees to exercise industrial power during negotiations in respect of future wages and conditions is protected industrial action. Access to protected industrial action is contingent upon the employees and their bargaining representatives having complied with a series of statutory prerequisites. The most significant of these is the requirement to hold a pre-strike ballot of the relevant employees to authorise the proposed action. Without approval in a ballot, any industrial action undertaken will be unprotected, leaving the union open to liability under common law and statute, and its members potentially subject to dismissal from employment. This article explores the effect of pre-strike ballots on union decision-making and enterprise bargaining. Drawing on statistical analysis of a cross section of protected industrial action ballot applications made to the Fair Work Commission over a period of 12 months, and grounded theory analysis of interviews with ballot applicants, employer respondents and key stakeholders.</p

Protected Industrial Action Ballots: An Empirical Overview

Workplace relations in Australia, including requirements relating to the use of industrial action in the context of enterprise bargaining, are governed by the Fair Work Act 2009 (Cth) (FW Act). Legally protected industrial action by employees and their bargaining representatives can lawfully be taken only in the context of, and is conditional upon, approval through a secret ballot of the employees to whom the proposed agreement is to apply. Conducting such a ballot is itself conditional upon first obtaining a protected action ballot order (PABO) from the Fair Work Commission (FWC). Whilst there is a relatively large body of published industrial relations research exploring both the frequency, and the impact, of strike action, there is significantly less published material on the regulation of decisions relating to industrial action by workers and their trade unions. This paper provides a preliminary report on a research project which is intended to help fill this gap in the literature. Drawing on data resulting from an analysis of every PABO application made to the FWC during the reference period, the article describes the PABO process in practice. This, in turn, facilitates understanding of the regulatory contribution made by the provisions and raises significant questions over whether the administrative burden is justified by the outcomes achieved

The Role of the ‘Genuinely Try to Reach Agreement’ Requirement in the Protected Industrial Action Regime under the Fair Work Act 2009

The requirement genuinely to try to reach an agreement (GTRA) is one of a number of criteria that employees must satisfy before they can take protected industrial action in the course of enterprise negotiations under the Fair Work Act 2009 (Cth). It is tested before the FWC in the process of making a Protected Industrial Action Ballot Order (PABO), and such an order cannot be made unless the FWC is satisfied that the requirement has been complied with. While there is a well-developed jurisprudence on the meaning of GTRA, there have been no attempts to study how the requirement operates in practice. To address this gap in the literature, this article draws on qualitative and quantitative analysis of PABO applications, and interviews with stakeholders including unions, employers and members of the Fair Work Commission. The analysis of this data demonstrates that the success rate of PABO applications is very high, with few PABO applications being contested by employers and even fewer being rejected by the FWC on the basis that the application has failed to meet the GTRA requirement. However, while few PABO applications are denied on this ground, the empirical findings also suggest that the GTRA requirement plays a signalling role in the enterprise bargaining regime, helping to establish accepted norms of conduct by trade union bargaining representatives seeking to take protected industrial action