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European Union (Withdrawal) Bill, legal aid, access to justice

26 March 2018

There is another busy week ahead in Parliament this week for justice issues. The Law Society's chair of Employment Law Committee Max Winthrop will be giving evidence to the Women and Equalities Committee on Wednesday on its inquiry on sexual harassment.

There are also Westminster Hall debates on the promotion of legal services after Brexit, on court closures and reform and on the Justice Select Committee's report on implications of Brexit for the justice system.

The European Union (Withdrawal) Bill will also receive its tenth and eleventh days of Committee Stage in the House of Lords.

The business for this week in Parliament also includes several select committee oral evidence sessions on the UK's economic relationship with the EU, on disclosure of evidence in criminal cases, on enforcement and dispute resolution after Brexit and on the proposed UK-EU security treaty.

Last week, the Law Society published a report on the impact of the legal aid means test in conjunction with the University of Loughborough and was circulated to parliamentarians. The report shows how some of society's most vulnerable are unable to access justice after being deemed ineligible for legal aid despite living in poverty. The report has so far been well received in the media, with coverage in outlets including the Guardian, Buzzfeed, the Independent, local BBC channels and the Times Brief. 

The European Union (Withdrawal) Bill continued its passage through the House of Lords at Committee Stage, the Lords EU Justice Sub-Committee took evidence on Brexit and enforcement and dispute resolution and the Exiting the EU Committee continued receiving oral evidence on the progress of the UK's negotiations on EU withdrawal.

This week in Parliament

Monday 26 March

House of Commons

  • General Debate - Russia

House of Lords

  • Committee Stage (Day 10) – European Union (Withdrawal) Bill

Tuesday 27 March

House of Commons

  • Westminster Hall debate: Court closures and reform - Tanmanjeet Singh Dhesi MP
  • Westminster Hall debate: Legal aid for families of the victims of the Birmingham pub bombings - Richard Burden MP
  • Committee Stage – Data Protection Bill
  • Treasury Committee - Oral Evidence Session - The UK's economic relationship with the European Union
  • Justice Select Committee - Disclosure of evidence in criminal cases
  • Financial Guidance and Claims Bill [Lords] - remaining stages

House of Lords

  • EU Justice Sub-Committee - Oral Evidence Session - Brexit: enforcement and dispute resolution - Lucy Frazer QC MP and Suella Fernandes MP
  • Oral question - Brexit negotiations and recent submissions from the European Council and Commission - Lord Dykes

Wednesday 28 March

House of Commons

  • Women and Equalities Select Committee - Law Society giving evidence – Max Winthrop, Chair of Employment Law Committee
  • Westminster Hall debate - Promotion of legal services after the UK leaves the EU - Robert Neill MP
  • Joint Committee on Human Rights - Oral Evidence Session - The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards 
  • Home Affairs - Oral Evidence Session - The work of the Home Secretary - Rt Hon Amber Rudd MP

House of Lords

  • Committee Stage (Day 11) – European Union (Withdrawal) Bill
  • EU Home Affairs Sub-Committee - Oral Evidence Session - Brexit: the proposed UK-EU security treaty

Thursday 29 March

House of Commons

  • International Trade Questions
  • Westminster Hall debate - Ninth Report of the Justice Committee, Session 2016-17, Implications of Brexit for the justice system, HC 750 and the Government Response

Last week in Parliament

Monday 19 March

House of Lords

EU (Withdrawal) Bill - Lords Committee Stage (Day 8)

The House of Lords held its eighth day of Committee Stage debate on the EU (Withdrawal) Bill. The full debates can be read here and here.

Peers considered amendments relating to Schedule 7 of the Bill, which concerns the Government's powers to make regulations through secondary legislation and the parliamentary scrutiny of such powers.

The Law Society briefed on the debate including on insolvency matters discussed. Labour's Brexit spokesperson in the Lords, Baroness Hayter of Kentish Town said that after seeking a meeting with BEIS Ministers, that there were various bodies "such as R3 or the City of London Law Society, who feel that the Government are not taking this [issue] seriously enough, have met with the Insolvency Service and feel that they are not getting traction in the Brexit negotiations."

The other key points in the debate were:

  • Retained rights: Lord Haskel (Labour) tabled amendment 214 after Clause 9 of the Bill. The amendment would ensure that the UK retained EU standards for goods and services, and these would continue to be enforced by the appropriate EU body post-Brexit. Speaking to the amendment, Lord Haskel argued that it was necessary to transpose the existing governance of EU arrangements into UK law to ensure that key regulatory standards continue to be enforced. Responding for the Government, the Advocate-General for Scotland Lord Keen of Elie said that the amendment was unnecessary, as the UK has a long tradition of ensuring that rights and standards are protected domestically, and of fulfilling international obligations with regard to these matters.
  • Insolvency: Baroness Hayter of Kentish Town tabled amendment 220 after Clause 9 of the Bill, which would require Ministers to publish a report within six months of the Bill getting Royal Assent, outlining the extent to which the benefits afforded by EU insolvency and restructuring law will continue to exist in domestic law after exit day. Speaking to the amendment, Baroness Hayter argued that the UK's world-class insolvency regime relied on free access to European investors and traders, which would be potentially be inhibited by Brexit. Peers further argued that the UK's insolvency framework was crucial to small businesses as well as to the stability of international markets. Lord Keen of Elie said that the Government would be prepared to meet interested peers to discuss the topic in greater detail and that they intended to negotiate an arrangement with the EU on dispute resolution and effective jurisdictional recognition on insolvency.
  • 'No deal' negotiations outcome: Lord Campbell Saviours (Labour) tabled amendment 227BA after Clause 9 of the Bill, which would ensure that in the event of a 'no deal' outcome, the Government would revoke Article 50 (the terms of which the Government would be obliged to previously negotiate) and table a second referendum. In response, Exiting the EU Minister Lord Callanan said that provisions for a second referendum would undermine the UK's current negotiating position and that the public had already decided to leave the EU. He further noted that Parliament would be given a vote on the final Withdrawal Agreement and that, in the event of Parliament rejecting such terms, the UK would withdraw from the EU on a 'no deal' basis.
  • Sifting committees: Lord Lisvane (Crossbencher) moved amendment 237 to Schedule 7 of the Bill, which would replace the new provisions on a sifting committee added into the Bill at Commons Committee Stage with an alternative provision on sifting committees. This requires that where a Minister believes a statutory instrument (SI) should be subject to the negative procedure, the instrument must be laid before Parliament and if either House requires the affirmative procedure to apply then it will do so. Either House can require the procedure to apply by a 'sifting committee' reporting on the instrument within 10 days of the instrument being laid recommending that the affirmative procedure should apply, and the House has not by resolution rejected the recommendation within 5 sitting days after the recommendation was made. Lord Lisvane argued that the amendment lays out the Lords Delegated Powers Committee's view that a recommendation from a Committee of either House should be sufficient to upgrade a procedure from negative to affirmative. Responding for the Government, Baroness Evans of Bowes Park said that sifting committees, as currently provided for in the Bill, cover only the main powers in the Bill, rather than any consequential and transitional provisions made under Clause 17 where the negative procedure is stipulated. She further noted that making consequential provisions through SIs is already a standard approach in legislation and pledged to publish draft examples of the use of SIs to enact consequential provisions, to be examined by Peers for further consideration.
  • Super-affirmative procedures: Lord Hodgson (Conservative) moved amendment 238 to Schedule 7 of the Bill, which would create a new 'super-affirmative' procedure for SIs. Under this provision, where a Minister believes that an SI should be subject to the affirmative procedure, either House of Parliament can require the super-affirmative procedure to apply through the same process outlined above. The 'super-affirmative' procedure requires ministers to have regard to any representations, any resolutions in either House and any recommendations of a committee charged with reporting on the draft regulation during a 60-day period. Lord Hodgson argued that the purpose of the amendment was to provide a new super-affirmative procedure to be available for use where particularly significant statutory instruments are being discussed, whilst recognising the practical need for the Government to implement necessary statutory provisions. Responding for the Government, Baroness Goldie said that the amendment would fundamentally alter the nature of secondary legislation and that if legislation is subject to continued back and forth, crucial provisions will not be in place in ​time to allow businesses and individuals to prepare for Brexit. However, the Government pledged to explore in further detail points raised regarding mechanisms by which the use of statutory instruments can be overseen by Parliament.

Tuesday 20 March

House of Lords

EU Justice Sub-Committee – Brexit and enforcement and dispute resolution

The House of Lords EU Justice Sub-Committee took evidence on Brexit and enforcement and dispute resolution. Read the Law Society's written evidence to this inquiry here .

Many of the points raised in the hearing concerned the new international court being proposed by the two witnesses which will operate instead of the Court of Justice of the European Union (CJEU) after Britain leaves the EU.

The key points from each of the two witnesses are as follows:

Sir Richard Aikens QC, Brick Court Chambers, former chair of Lawyers for Britain:

  • You can't have one single solution for all areas (such as citizens' rights, EU-retained law, and operating any trade-based treaty.
    • For EU retained law, UK courts can deal with this with due regard for existing EU law and would follow the CJEU in 99 cases out of 100.
    • There is also no difficulty with regard to citizens' rights, which can be dealt with by UK courts. There might be an issue with EU citizens who have rights of residence, who might want to be able to refer to the CJEU after we've left. Struck RA to say no to this as we will no longer be a part of the EU.
  • It is completely illogical to say the CJEU should have jurisdiction over us after we leave, given the UK will have no staff or no say.
  • An easier solution would be to have a tribunal with a series of distinguished judges from EU countries and the UK which would be independent to deal with any other issues which arise.
    • There is already a model for this in CETA.
    • This would cover the main areas, so the CJEU would not be required.
    • The court would refer to CJEU judgments, but wouldn't have to be bound by them.
  • There's no reason for using the current arrangement between the UK and EU as a basis for the new arrangements.
    • The EU court decides on EU matters, the new court will be between two separate jurisdictions in dispute rather than run by one of them in the interests of that jurisdiction.
    • The CJEU is not currently independent because it is the guardian of the treaties and is committed to providing further integration.
  • EU citizens have rights here currently because they are living in an EU state. After 2020, an Italian living in the UK will still be an EU citizen, but won't be in an EU state. Why should she have the rights of the EU citizens in EU states when not in an EU state?

Mr Martin Howe QC, 8 Square Chambers, chair of Lawyers for Britain:

  • It would be incoherent to leave the EU but nonetheless stay subject to the laws and rules with no say over them. This is a very serious danger we are facing now.
  • It would be completely incompatible and unprecedented in generally accepted international practice for the CJEU to have direct jurisdiction over the UK after Brexit, and for the UK for be directly under the CJEU.
  • The domestic courts should be free to depart from policy driven decisions of the CJEU. The CJEU does not neutrally interpret the texts, and no commentator would say it does.
  • There is a final arbiter in any event in the form of the WTO.
  • Our proposed international court would be final.
  • The substantive rights of the EU citizens will not change, they have the same rights they previously had under the EU treaties.
  • It will be very sensible for UK courts and the international court to look at Luxembourg judgments, but not to be bound by them apart from in very specific circumstances.
  • The EU will agree to this idea of a new court because they have agreed to it in the past with CETA.
    • The CJEU will accept being bound by an external treaty court.
    • It will not accept external bodies dictating to it on EU matters, which is why joint EEA/EU court idea was dismissed.

Wednesday 21 March

House of Commons

Exiting the EU Committee inquiry – Progress of the UK's negotiations on EU withdrawal

The Exiting the EU Committee took oral evidence from witnesses on the progress of the UK's negotiations on EU withdrawal.

The witnesses were:

  • David Campbell-Bannerman MEP (Conservative, and member of European Parliament's Committee on International Trade)
  • Jessica Gladstone, Partner, Clifford Chance LLP
  • David Henig, UK Trade Policy Specialist (formerly of Department for International Trade, currently at European Centre for International Political Economy)

The following key points were made in the session:

  • South Korea FTA and legal services: David Henig was asked by Emma Reynolds MP whether South Korea would demand concessions from the UK on market access in exchange for rolling over its free trade agreement (FTA) after Brexit. He answered that "one of the things that the South Korea-EU agreement gave us was access to their legal services market. That has been a little bit controversial in South Korea, as I understand it. They may want to say, "Can we restrict that a little bit?" It is a negotiation, at the end of the day; we cannot say what will actually happen as a result of that."  
  • CETA and services: Asked by Chair Hilary Benn MP, Campbell-Bannerman said the CETA deal provided a basis for financial services, but the EU needed to go further than this for the UK. He added that the European Council had now agreed the principle of adding services in ("they are already offering CETA-plus") and that Donald Tusk was offering a better arrangement than CETA in "100% tariff-free access and no quotas." Campbell-Bannerman went on to say services would part of the package for the UK, and suggested TTIP was also a useful model to build upon for the UK's future trading relationship with the EU.
  • Financial services: Asked by Stephen Timms MP about Clifford Chance's report about UK access to financial services in a EU-UK FTA, Jessica Gladstone said they had proposed a model with mutual recognition at the regulatory level which could allow, with political agreement, "financial services to continue to operate, to a large degree, in the way they have been used to." She added that mutual recognition allowed more flexibility than equivalence in terms of future divergence, and allowed partners to reach the same sort of outcomes without necessarily following exactly the same rules. Acknowledging the rule-taker connotations of an equivalence regime, Ms Gladstone said Clifford Chance's proposal was a step away from passporting but was flexible enough for the political outcome of the negotiations to be "as close or as far from passporting as it agreeable to the parties."

House of Lords

Committee Stage (Day 9) – European Union (Withdrawal) Bill

The House of Lords held its ninth day of Committee Stage debate on the EU (Withdrawal) Bill. The full debates can be read here, here and here.

Schedule 7 and Clause 17 of the Bill, which relate to the Government's powers to make regulations through secondary legislation and the Parliamentary scrutiny of such powers, were agreed without amendment.

Peers began discussion of provisions in the Bill relating devolution, with Clause 10 and Schedule 2 of the Bill being agreed without amendment.

When discussing Clause 11 of the Bill, also on devolution, the Government tabled an amendment which was not moved for a vote. The Government stated that the purpose of the amendment was to signify the current direction of policy as opposed to representing their final position.

A summary of the key points in the debate is below:

  • Government devolution amendments: The Government spoke to their amendments 302A, as a means of providing Parliament an update as to the state of current negotiations with the devolved administrations. Speaking for the Government, Lord Keen of Elie stated that the Government intended to give UK Ministers powers to apply targeted and temporary limitations on competence to modify retained EU law, to maintain existing UK frameworks. Lord Keen further argued that the Government was committed to continue to work with the devolved administrations to devise a bespoke UK post-Brexit legal and constitutional settlement.
  • Retained EU law and devolution: Lord Hope of Craighead tabled amendment 274 to Schedule 2 of the Bill, which was intended as a probing amendment on the question of the relationship between retained EU law and the competence powers of the devolved administrations. Considering the amendment, Peers also spoke to amendment 303 to Schedule 2 of the Bill, which stated that the Government must lay before each House of Parliament proposals for replacing EU legal frameworks with frameworks for the UK as whole. Speaking for the Government, Baroness Goldie stated that the Government was committed to respecting the powers of the devolved administrations and was in the process of consulting with the devolved administrations as to a suitable post-Brexit legal framework for the UK.
  • EU retained Law: Lord Bassam of Brighton (Labour) tabled amendment 255 to Clause 17 of the Bill, which would ensure that the Government does not have the power to determine whether particular pieces of EU retained law should be designated as primary or secondary legislation. Speaking to the amendment, Lord Bassam argued that provisions allowing the Government to determine the designation of EU retained law would significantly curb the ability of Parliament to hold to account Ministerial decisions regarding the implementation of Brexit. Responding for the Government, Lord Keen of Elie argued that the breadth of retained EU law means that the Government has to have the power to designate certain provisions as being secondary legislation. Lord Keen confirmed that this was an area where the current Government was still consulting and would consider further raised concerns.
  • Human Rights: Lord Low of Dalston (Crossbencher) tabled amendment 242A to Schedule 7 of the Bill, which would rule out the use of delegated powers to amend the protection of equality and human rights provided by EU law. In speaking to the amendment, Lord Low referenced amendment 259 to Schedule 7 of the Bill, which was tabled by Lord Adonis (Labour), Lord Judd (Labour) and Lord Roberts of Llandudno (Liberal Democrat). Amendment 259 stated that the Government may not use Statutory Instruments to amend, repeal, revoke, or modify the effect of any law relating to equality or human rights. Lord Low argued that changes to fundamental rights should be made by Parliament by primary legislation, not by Ministers through secondary legislation and that the Bill does not rule out such changes being made by delegated powers to fundamental rights currently protected by EU law. Speaking for the Government, Lord Keen stated that the Government would not use secondary legislation to amend fundamental rights but pledged to examine the issue further by the time of the Bill's Report Stage.

Thursday 22 March

House of Commons

Digital, Culture, Media and Sport (DCMS) Oral Questions

At Digital, Culture, Media and Sport Questions Joanna Cherry QC MP (SNP, Solicitor, Spokesperson for Justice and Home Affairs) asked the Government what assessment they have made of the potential effect of the Data Protection Bill (which is currently at Committee Stage in the House of Commons) on data protection agreements with the EU after the UK leaves the EU. The Law Society briefed members ahead of the session.

Cherry then raised the issue of the immigration exemption currently included in the Bill, saying it is not reflective of the stated permissible exemptions under article 23 of the GDPR and that a resisting an Amendment to the Bill could "affect the grant of adequacy by the EU Commission" following the UK's exit from the European Union.

In response, the Secretary of State for DCMS Matthew Hancock MP said the Data Protection Bill is "entirely compliant with the GDPR and implements the GDPR in the UK."

Brendan O'Hara MP (SNP), who sits on the Data Protection Bill Committee, said "fears of achieving adequacy" were raised frequently. He implied the Government was taking a "trust us, it will be okay approach" to the immigration exemption.

In response, Hancock said the amendments currently tabled would add "absolutist language" to the Bill rather than "the nuanced language of the GDPR." Liam Byrne MP (Labour, Shadow Digital Minister) added that the threat of not achieving adequacy has been brought to light because the Cambridge Analytica scandal.

Members will have another opportunity to table an amendment to the Bill at Report Stage when a date is announced.

Attorney General Oral Questions  

Topics covered at Attorney General Questions included the Crown Prosecution Service (CPS), Brexit, human rights, the rule of law online, modern slavery and domestic abuse. A short summary is included below.

The CPS and disclosure

  • Sir Peter Bottomley MP (Conservative) asked whether the CPS should ask in cases where police are alleged to have mistreated a criminal whether and when the investigating police had first interviewed the recorded officer in charge. Responding, Solicitor General Robert Buckland QC MP said that he would expect the CPS to conduct a "thorough disclosure exercise" in any such case.
  • Jo Stevens MP (Labour) asked about the resources available to the CPS, and how they can deal with an increasing volume of information. Responding, the Attorney General Jeremy Wright QC MP said that the Director of Public Prosecutions had said that disclosure problems were not caused by resource issues. He said he was pleased that the police and the CPS had come together to take forward their National Disclosure Plan. He confirmed that there are larger quantities of digital material and that the Government need to find smarter ways to approach this.

Domestic abuse

  • Paul Scully MP (Conservative) asked about the level of victim withdrawal in cases involving domestic abuse and the success rate of the CPS in securing prosecutions. Responding, Solicitor General Robert Buckland QC MP said that measures were in place to support victims to give evidence in trial, adding that prosecutions can go forward without victims' evidence under new reforms. He said that 300 cases had been charged and reached a first hearing since reforms had been put in place.
  • Shadow Solicitor General Nick Thomas-Symonds MP (Labour) enquired about revenge pornography and recent law changes, and data collection of this issue. Responding, Solicitor General Robert Buckland QC MP noted the recent consultation launched by the Government on this. He cited the example of special measures accorded to victims of domestic abuse and said there needed to be a continuous package. He said the CPS was working on disaggregation of data in a number of areas.

Brexit and human rights

  • Alison Thewliss MP (SNP) asked about the effect of Brexit on the operation of the legal systems across the UK and asked whether the Government would take note of the Continuity Bill being considered in Scotland, particularly regarding the future role of the European Court of Justice. Responding, Attorney General Jeremy Wright QC MP argued that the EU (Withdrawal) Bill will ensure there is continuity in legal systems post-Brexit. He said that the Government would continue to consult with the devolved administrations on Brexit and the European Court of Justice (CJEU).
  • Joanna Cherry QC MP (SNP) asked about the politicising of the judiciary under Clause 6 of the EU (Withdrawal) Bill. Responding, Attorney General Jeremy Wright QC MP said the Government was doing a great deal to re-assure the judiciary's concerns about being placed in a position where they could be seen to make a political judgment. He said he wished for them to be able to interpret the law post-Brexit with support.
  • Hannah Bardell MP (SNP) asked about the protection of human rights in the UK post-Brexit, and whether the UK would continue to observe the Charter of Fundamental Rights post-Brexit. Attorney General Jeremy Wright QC MP said that the UK has a long tradition of protecting human rights and that this would continue post-Brexit. He said it not make sense for the UK to adhere to the Charter of Fundamental Rights post-Brexit.

Rule of law online

  • Kemi Badenoch MP (Conservative) asked about the application of the rule of law to cyber activities and what could be done to address those countries who carried out hostile attacks in cyber space. In reply, the Attorney General Jeremy Wright QC MP argued that cyber space was not a lawless world and noted that there are rules in place to govern it. He then referenced some of the discussion taking place internationally with regards to cyber-attacks and the rights of countries to defend themselves.

Modern slavery

  • Chris Green MP (Conservative) asked about the steps being taken to increase the effectiveness of prosecutions in cases involving modern slavery. Responding, Solicitor General Robert Buckland QC MP said that the Director of Public Prosecutions had recently held an international summit for modern slavery prosecutors, and that he was pleased with the recommendation on mandatory training for prosecutors in the recent report on how the CPS deals with cases of modern slavery.

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