Secret courts – not in my name

Today the Justice & Security Bill enabling ‘secret courts’ passed through the House of Commons.  I wrote this about the bill last May.  Sadly it still holds true.

Don’t get me wrong, I enjoyed Spooks as much as the next person, although I lost interest once the characters played by Rupert Penry Jones and Hermione Norris were bumped off. Along with most people, I have no illusions as to how accurate a portrayal it represented of the security services. Most amusing was the idea that there were only about a dozen spies at most, all highly swashbuckling, protecting us.

Nobody thinks there are spies much like James Bond either, but I suppose most people would generally assume that our spies at least are the good guys and reasonably successful in doing their jobs. And there’s the rub. Mostly we have no idea what they are up to, which is why the government’s proposals for secret courts are so worrying.

I wrote not that long ago about why these plans undermine the principle of open and equitable justice and why we should oppose them. Secret courts have no place in an open and democratic society and apparently the justice secretary Ken Clarke has finally been swayed by the Daily Mail’s campaign against the proposals.

Or perhaps not. The much-trumpeted climbdown, most notably on the proposal that public inquests might be held in secret, is really nothing of the sort, if you take as your starting point the principle that all institutions must submit to the rule of law. Instead, this bill means that the intelligence services can insulate themselves from legal challenge and press scrutiny.

That is not to say we shouldn’t welcome the concessions, limited though they might be, although, as with any government u-turn, it is always worth remembering what Shami Chakrabarti, director of Liberty, calls the ‘oldest parliamentary trick’ where you start with ‘a policy so outrageous that any crumb of comfort looks half reasonable’.

The other crumb offered by Clarke has been to decide that a judge, not a minister, will make the final decision on whether proceedings should go into close session.  It’s difficult to see, however, how the proposals, which remove judges’ public interest immunity discretion, are anything other than a whitewash.

In reality, this ‘concession’ is a nonsense.  Under the bill, a judge ‘must’ agree to a secretary of state’s demand for secret hearings if the disclosure of information ‘would be damaging to the interests of national security’.  This, says Clarke, is a much narrower criterion than ‘the public interest’.  It may well be, but the problem remains, who defines what is in the interests of ‘national security’. The judges? The government? The spies?

One key opponent to the proposals, Liberal Democrat peer and former Director of Public Prosecutions, Lord Macdonald, told the Today programme that ‘judges pay a high degree of deference to ministers in the area of national security’. Judges themselves agree. As Lord Kerr of the Supreme Court said in al-Rawi, the leading case on secret hearings in civil claims, ‘evidence which has been insulated from challenge may positively mislead’.

I don’t know about you, but I want to know what is being done, in my name, to protect ‘national security’. I want to know if my government has been complicit in the torture of detainees overseas or has allowed their rendition back to brutal regimes where their lives are in danger.

I am quite sure the Intelligence and Security Committee doesn’t provide the accountability it’s supposed to.  But that’s hardly surprising when it is appointed by the prime minister, has its reports vetted by him and probably only sees what MI5, MI6 and the government want it to see. The committee probably knows this, but that doesn’t make me feel any better about it.

Ken Clarke claims there will, in fact, be more justice under these proposals because the only alternative is silence.  This sounds pretty unlikely to me.  Much more likely is that he wants to protect ministers against civil damages claims, like those from Guantánamo Bay detainees ‘to whom we paid a lot of money recently because we could not put the evidence up against them’.

Lord Macdonald suggests the government has failed to come up with any concrete examples where this has happened.  More to the point, it doesn’t make it any more like fair justice if the case goes ahead in secret and is decided on evidence that one of the parties can’t even see.

It is worth citing the case of Khadidja al-Saadi who was rendered at the age of twelve by the UK to Gaddafi’s Libya. Her family are taking the British Secret Services to court for conspiracy to torture after failing to get either an apology or an explanation for their ordeal. Even with Ken Clarke’s ‘concessions, her case will be held in secret, so we’ll never know the truth.

On hearing about the plans, Khadidja al-Saadi said they sounded

‘a lot like the trial that Col. Gaddafi used to sentence my father to death. In that case, my dad told me, a man came from behind a panel and whispered intelligence in the judge’s ear. My father had no opportunity to respond and had no idea what was said. [He was] sentenced to die. I say ‘sentenced’ but it was no trial. It was a joke. Is this really what Britain wants to do with my case?’

And this, ultimately, is the point. I don’t want my justice system to be compared with that of a raving, maniacal and badly-dressed despot. I don’t want our spies, however noble and just they might be, running around unchecked. And I don’t want ministers to act as judge and jury, deciding what I can and can’t know about what they are doing in my name, because it isn’t always good and it’s not always pretty.

Is self representation the legal equivalent of a DIY appendectomy?

Would you rather represent yourself in court or perform your own appendectomy? It sounds like a fairly straightforward question and at first thought, and quite possibly second and third thoughts as well, most of us would plump for representing ourselves in court: there is, arguably, less blood, less pain and less chance of death.

But I have been musing on the question since reading about Ramírez Pérez, a Mexican woman who delivered her own child by caesarean section.  The mother of seven, who lived in a tiny rural community in Mexico eight hours from the nearest hospital, decided after 12 hours of severe labour pains that rather than risk losing her baby she would operate on herself.  Remarkably both she and the child survived.

Not something I imagine many women will be including in their birth plans.  Unsurprisingly, Ramírez is believed to be the only woman to have performed a successful caesarean on herself, although it’s quite possible some of us would do the same if we found ourselves in her situation.

Ramírez obviously felt she had no choice, or only a choice between her DIY operation and death, which isn’t much of a choice. This is likely to be true for anyone else who finds they have to wield the knife on themselves: the mountaineer who cuts off an arm to escape a rock fall or the scientist stuck in the Antarctic who needs a biopsy (although there is a strange category of people who seem to do it for fun).

It is unlikely that many people represent themselves in court for the fun of it.  Nobody knows your body better than you, and all you have to face when cutting yourself open is pain and a lot of cleaning up afterwards.  In court you have to face people, in comedy wigs and gowns, for whom the rules and regulations are second nature and who argue for a living using a strange language the rest of us don’t understand.

You might think, therefore, that the only people who would represent themselves in court would be those oddballs who ‘love a challenge’, who want to put one over on the establishment, who have nothing better to do, or who are just a tiny bit crazy.

Not any more.  Where once people would no more represent themselves than they would drill a hole in their own head, now anyone can find themselves having to navigate the arcane world of the court system because they have no choice.

This alarming rise of litigants in person is set to increase and everyone from the Lord Chief Justice down is starting to worry about the impact this will have on the justice system.  Everyone, it seems, apart from the government.

In the last five years there has been a 61 per cent rise in the number of reported high court and tax tribunal cases involving unrepresented litigants.  The recession has had a huge negative impact on people’s personal finances, meaning more may end up in court but unable to afford a lawyer.  From April 2013, when the legal aid cuts come into force, this is only going to get worse.

There will no longer be any financial support for most cases involving divorce, child custody, medical negligence, employment, immigration, housing, debt, benefits and education.  According to the government’s own figures, 623,000 people could lose out on advice.  A number of law centres are already closing, but the £20m transition fund set up to support them looks somewhat paltry.  All of which might be ok if it were really going to save £350m, but it isn’t.

When I needed a caesarean for the birth of my daughter it took minutes, seconds even.  It took Ramírez an hour to perform one on herself and she needed further surgery to repair complications.  Likewise, a case prepared by a lawyer who knows what they are doing is likely to reach, and conclude, a final hearing much more quickly the than one handled by someone who didn’t even know where the court was until last week.

The government says the evidence does not show that these cases ‘necessarily take longer’.  I find this hard to believe.  Self-represented litigants are not going to have had any legal advice to help work out the merits or demerits of their case.  They are not going to know what is relevant and what is not, nor what they have to produce or when they have to produce it.

The government says ‘judges are already well used to dealing with litigants in person’, but this upsurge in cases that need significantly more support is going to descend on a court system that is already noticeably creaking following drastic staffing cuts.

The government says its reforms will encourage people to tackle their problems earlier and in other ways rather than resorting immediately to legal action.  But by pulling the rug out from under people, what they’ll get is more people who get no justice at all, either because they haven’t had any legal advice or because they will just give up.

You don’t even have to use your imagination to see what this deluge of DIY justice will look like.  US courts are flooded with poorer people representing themselves and judges say they are slowing down court dockets because they don’t know what legal points to argue or what motions to file.

According to America’s largest funder of civil legal aid for the poor, less than 20 per cent of the legal needs of low-income people are addressed with the help of a private or legal aid lawyer.  Its chairman says ‘courthouses are being filled with people just showing up, trying to figure out what their rights are’.  In some states the numbers of litigants in person in child custody and divorces cases is around 80 per cent and rising.  Millions of dollars has been spent on educating and supporting them.

A former aviation director who represented himself in court, Peter Elliot, told the Law Gazette he was ‘utterly frightened’ and intimidated when he first walked into Manchester high court four years ago and had no clue what he was doing.  ‘It was like being in a game of chess where you don’t know where any of the pieces can go but your opponent knows it all’.

Even so, I’m guessing Mr Elliot’s background had better prepared him for the challenge than many of the vulnerable people who will find themselves in the same situation come April next year.  Against this, cutting your own foot off starts to look like the easy option.

Lessons about justice from the trial of Oscar Pistorius

I was one of those lucky enough to be in the Olympic stadium on 8 September last year to watch Oscar Pistorius win his emotional gold medal in the 400m. Well, it wasn’t entirely luck, I had applied for tickets for that session precisely because I wanted to see him race. It was an incredibly stirring event and one that banished memories of his unseemly tantrum the week before, which I’d also been there to see.Image

Just as it was not a surprise that the way in which Pistorius won, and accepted, this gold medal provided redemption, it should not have been a surprise that our hero wasn’t, in fact, the icon we held him to be, but a normal person just like the rest of us. All the same, finding out someone can be ruthless and ungracious does not mean it is not shocking to learn he’s shot and killed his girlfriend.

And despite all the details about loud arguments, bloody cricket bats, whether or not the athlete took time to put on his prosthetics and where the victim, Reeva Steenkamp, was sitting when she was shot, this is all we really know. It is, I would suggest, all we really should know, given the alleged crime took place less than a week ago and hasn’t yet even come to trial.

As the Twittersphere and rolling news whip themselves up into a frenzy of speculation, claims and counter claims are increasingly masquerading as facts. The case, understandably, is being compared to that of OJ Simpson in 1994. But if Simpson’s trial was a circus, today’s proliferation of social media renders Pistorius’ more like a deranged bacchanal in which the participants try to outdo each other by sharing ever more salacious details that confirm their own already-decided verdict on his guilt or innocence.

It differs from Simpson’s trial in another key respect, there will be no jury. This is why both the South African and international media have been able to unearth stories apparently proving Pistorius’ unhealthy relationship with guns and previous violent behaviour. Even though South Africa has similar contempt laws to ours, they are rarely enforced because the judges who deliver verdicts are considered above influence.

South Africa abolished its jury system in 1969 because of racial politics. Only white people could be jurors and black defendants had no hope of getting a fair trial. It is surely debatable as to whether Pistorius can get a fair trial, even if the verdict comes from an unswayable judge who has to provide reasons for his decision. It must also be possible that some of this sensational coverage might be straying dangerously close to libel.

Before we get all high and mighty about the wonders of the jury system, let’s remember many people think the OJ Simpson jury got it wrong and our contempt laws are under strain from the challenges posed by social media. Between 1998 and 2005, the Court of Appeal ordered only four investigations into ‘juror misbehaviour’, but from 2006 to the middle of last year ‘at least 27 investigations’ were ordered.

The internet makes it all too easy for overenthusiastic jurors to do a little background research in between court sessions. It is equally challenging to prevent prejudicial information being published on the web. A consultation on proposals to reform our contempt laws has suggested there could be a new oath not to undertake research and tougher penalties for jurors who go a little ‘off piste’.

However, none of this will help without better education about the justice system. Only today, the jury at the trial of Vicky Pryce was dismissed after asking the judge ten specific questions about the case, including the definition of ‘reasonable doubt’ and whether a jurors could ‘come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or defence’. for failing to reach a verdict. The judge concluded they were ‘highly unlikely’ to reach a verdict.

If some commentators found it exasperating that jurors could be so baffled by the trial process, I can only wonder that this doesn’t happen more often. Maybe it does, we have no way of knowing what goes on behind the closed doors of jury deliberation and whether jurors have done their job properly, even if we believe most of them do.

Part of the fascination we have with high profile cases overseas, be it OJ Simpson, Amanda Knox or Oscar Pistorius, is, I think, as much about another country’s different way of dispensing justice as it is interest in the human story. We were baffled by the televised courtroom and superstar lawyers in Los Angeles, confounded by the inconclusiveness of Italian justice and now puzzled by the workings of a South African system that seems almost to sanction trial by media.

My fascination is compounded by my long affection for South Africa, which I first visited in 1976 when I was only four years old. It is a savagely beautiful country and I have always been struck by the warmth of its people despite its difficult past and troubled present. These same people will no doubt feel somewhat uncomfortable at this most recent spotlight being thrown on their country, in particular the violent undercurrent it brings into sharp relief and that all too frequently forces its way to the surface.

Despite fairly strong gun laws, 6 million people, 12 per cent of the population, own a gun and anyone who can locks themselves away in gated communities. On average a woman is raped every four minutes and one is killed every eight hours by a partner or relative. In a country where the poor are unlikely to be able to afford a lawyer and spend about two years in custody before coming to trial, it is perhaps the probable relative swiftness of Pistorius’ trial, and his highly paid lawyers, that will be most the most unusual aspect of this case.

Oscar Pistorius is already being seen as an analogy for a country that overcame tragedy, promised much and then fell gracelessly off its pedestal. His trial, and its outcome, will dictate whether or not he can redeem himself again. It may also have a tiny part to play in whether his country can also start to redeem itself.

What do you call a job without pay or employment rights?

Being forced to work in Poundland may not be very nice, but equating it with modern-day slavery is probably exaggerating. On the other hand, it’s quite reprehensible for an apparently reputable and successful business to employ people to do jobs that need doing and not pay them anything at all, even if the government has asked them to. It’s exploitation, even if the Court of Appeal couldn’t say so.

Cait Reilly’s claim that requiring her to work for free at a Poundland discount store was unlawful succeeded on a fairly technical basis and not on a finding that this was slavery under human rights law.  The court was quite clear that it had no principled objection to the Back to Work scheme but that it and other work-for-your-benefit schemes were unlawful because of the lack of basic information given to the unemployed.

In fact, Ms Reilly’s assertion that stacking shelves and sweeping floors were akin to slave labour was roundly rejected by a senior judge last year, making suggestions that the judgement was a damning indictment of the government’s work schemes certainly misplaced.  Anyway, ministers will just come up with new, lawful, regulations.

What is less obvious is whether these revisions will do anything to ensure schemes are ‘designed to assist the unemployed to obtain employment’.  Ms Reilly, a university graduate, had to give up her voluntary work in a local museum to stack shelves and clean floors under a scheme laughably called ‘the sector-based work academy’.  Quite what she was learning is unclear.

Her co-claimant, a qualified mechanic, was told he had to work unpaid cleaning furniture for 30 hours a week for six months under a different scheme known as the ‘community action programme’.  God only knows how that was supposed to help him find meaningful work or how forcing skilled workers to do menial jobs will help boost the economy.

To be honest, I am struggling to see how any of the government’s policies in relation to people’s rights around benefits or employment are going to help the economy.  And they seem to be at odds with recent pronouncements that we must start training our toddlers for work so as to keep up with the top-performing Asian countries – you don’t need a great deal of training to sweep floors or clean furniture (unless it’s antique).

Equally baffling is the government’s continuous trumpeting of the jobs figures that apparently show more people in work than ever before.  Not only do their figures include about 200,000 people on government training and back-to-work schemes (so not actually employed at all) but last week we learned that there are now 367,000 more people who are self-employed than there were in 2008.

I’m one of them, and while I am relishing the freelance life it has some significant drawbacks compared with being employed.  I have no job security, no sick pay, no holiday pay and no employer pension contribution (actually, at the moment no contribution at all), but it’s almost impossible to get a part-time job and it has a major advantage over a full-time one:  it allows me to be a proper mum (no offence meant to mum’s that do work full time).

The general secretary of the TUC, Frances O’Grady, must surely be right when she says

‘There may be perfectly good reasons for being self-employed, but it would be naïve to think that all these workers are really budding entrepreneurs.

‘These figures instead suggest that many employee roles are being replaced by self-employed positions.  Bogus self-employment is bad news for staff as they miss out on vital rights at work, such as paid holidays and employer pension contributions, without having the advantage of being their own boss’.

Still, that’s probably what the government wants, believing, I imagine, it will enable businesses to grow and create more (second-rate) jobs.  Amazingly, not all businesses agree, even the small ones, three quarters of whom gave a ‘withering response’ to George Osborne’s idea of allowing staff to trade their employment rights for shares.

Quite reasonably, a majority of small firms with annual sales of more than £1m felt the proposal would damage people’s trust in business by weakening staff rights or creating the wrong impression of entrepreneurs.  And it’s not just because they think administering such a share scheme would be a nightmare, or because what they really need is long-term shareholders focused on creating wealth, but because it would end up rewarding bad employers.

I’m fairly sure this won’t stop the chancellor going ahead with it.  O’Grady also believes the government has even set its sights on the employment rights guaranteed by social Europe that it currently can’t touch: such as health and safety protection, equal treatment for part-time workers and women, paid holidays, a voice at work and protection when a business is sold off.  A licence for bad employers if ever there was one.

Wanting to have a decent job, one with fair pay for a day’s work, fair treatment and a bit of job satisfaction is not unreasonable, even if it isn’t exactly a human right.  Standing up for this does not make someone a scrounger or workshy, it simply means they want something better for themselves.  I fail to see why the government disagrees.

What the age of criminal responsibility says about our attitude to children

Originally published on the QualitySolicitors blog in December 2011.

We are not, on the whole, particularly child-centric in this country.  Anyone with young children who has attempted to eat in a restaurant after 6pm knows this.  It is often preferable to beat a hasty retreat rather than face the glares of fellow diners as your toddler runs around the table legs and your six-year old whizzes toy cars across the table.  I’ve even been in a National Trust café where we were told off for ‘letting’ my friend’s son get cake crumbs on the floor.

It’s not much of a surprise then that we have one of the lowest ages of criminal responsibility for children in Europe and resoundingly trump even Algeria (13), Uzbekistan (15) and DR Congo (18).   A report by the Royal Society suggests that at 10 the age of criminal responsibility in England, Wales and Northern Ireland could be ‘unreasonably low’.

The Society’s conclusion is based on assessments carried out by a panel of scientists, lawyers and ethicists in how developments in neuroscience should inform the law.  The chair of the panel, Nicholas Mackintosh, said psychologists had shown adolescents are not wholly responsible individuals and that the brain continued to develop until around the age of 20.

Now I don’t imagine anyone is going to argue that we should raise the age from 10 to 20, and they’d have a hard job on their hands if they did, but it set me thinking about the seemingly arbitrary nature of the various ages at which the state says you can legally do things. For example, I’ve always thought it a bit odd that you can have sex at 16 but you can’t vote until you are 18 – surely the need to act responsibly in the former is far greater than the latter?

How is it that we don’t allow children to purchase lottery tickets until they are 16, but they can be held criminally responsible at 10?  Why do we think they aren’t responsible enough to get a tattoo until they’re 18, but they are responsible for criminal acts at 10?  And why aren’t children ready to leave school and go out into the world until age 16 but they can be tried as adults at 10?

I’m not suggesting children don’t know right from wrong by the age of 10, but there is a big difference between knowing it and being able to abide by it.  Life isn’t black and white and children of that age obviously can’t make judgements in the way adults can.  They may also be particularly susceptible to peer pressure or goading from older children and take a game or dare too far to impress.

I can only assume that having nearly the lowest age of consent I could find (except for bastions of democracy like Iran and Nigeria) is a tenacious hangover from the Victorian attitude that children should be seen and not heard and certainly not have any rights (apart from the right to sweep chimneys).

Whatever the cause, there is a hardening attitude among adults towards young people.  At the end of 2008, a poll by children’s charity Barnardo’s found that 49% of adults think children pose an increasing danger to society and 54% say young people are ‘beginning to behave like animals’.  It ran a disturbing advertising campaign warning that society is demonising children and aiming to remind us “the children we chastise, fear, expel, despise and lock up are still children”.

While it is true that children aged 10 to 17 are far more likely to be arrested than adults, fear of the young is surely exaggerated.  Fewer than 3% of this age group are in the criminal justice system and only a tiny minority are in custody.  But never mind, nasty stories sell more papers and get more website hits than a nice one, so we’ll run with the (utterly meaningless) Over half of young people claim to know how to obtain a knife’.  Such negative headlines ignore their impact on young people themselves who, let’s not forget, are still in their formative years.

Research by the National Children’s Bureau in 2009 found young people were angry and resentful about the way they are often portrayed.  It should come as no surprise that some choose to play up to their assigned role.  As one has put it “If we are getting told we are bad all the time, then we will just do something to be bad.  There’s no point in getting the blame for something unless you’ve actually done it”

In 2010 the Scottish government confirmed it would rise the age of criminal responsibility from eight to 12.  In making the announcement, justice minister Kenny MacAskill said:

“The evidence shows prosecution at an early age increases the chance of reoffending, so this change is about preventing crime.  [It] does not mean any eight to 11-year-olds will be let off.  Rather they will be held to account in a way that is appropriate for their stage of development”.

The evidence bears this out:  studies show 68% of young children given a community sentence order go on to reoffend.  According to Barnardo’s, a third of children under 15 who are in custody were 10 or 11 when they were first convicted.  It doesn’t take a genius to work out that this ‘conveyer belt of crime’ is entrenching the problem, not alleviating it.

The calls are growing louder to raise the age of criminal responsibility.  The Royal Society joins, among others, Barnardo’s, the children commissioner for England, a former chief of the Youth Justice Board and the Prison Reform Trust.  But the government has repeatedly insisted this is ‘not the answer’ and the focus should be on addressing the causes of offending by children.

Nobody is going to argue with that, least of all me.  If you’ll excuse the expression, it’s a no-brainer that we have to find a way of tackling the poverty, lack of opportunity and bad parenting that are probably largely responsible for driving any child into a life of crime.  Not that the government seems to be doing much on that front either.

It’s probably not the best time to argue that we should increase the age to 12 to align ourselves with the rest of Europe.  But we should.  We should also learn to love our children (and not just our own).  As one tweeter put it:

“The British attitude towards children [seems to regard them] as both brutes from birth needing to be tamed, and morally responsible for that brutishness.”

Whatever the cause, it is a thoroughly odd and extremely counterproductive way of thinking .  Personally, I blame the parents.

Stop playing roulette with legal aid!

Unless you are sitting at the roulette wheel, leaving things to chance is a risky strategy.  It can be risky even then, but there isn’t much in the way of an alternative.  Even people who think of themselves as impulsive or go-with-the-flow types probably don’t leave everything to chance and have a pension, a career plan, or home contents insurance.  And yet, leaving it to chance does seem to have become the government’s policy of choice when it comes to legal aid.

You could, with some reason, argue this is its policy of choice when it comes to quite a few other areas as well, but at least media and public scrutiny has forced ministers to attempt to defend their stance on, for example, benefit cuts.  Little attention, however, has focused on the chaos about to be unleashed in legal aid when funding cuts kick in on 1 April.

Astonishingly, given the significant areas of the law that will no longer be eligible for legal aid, there has been barely a whimper outside of the rarefied debates in the House of Lords or the noble yet niche efforts of various commentators in the legal press.

The Law Society’s Sound off for Justice campaign fell silent once the proposed cuts were signed into law.  There’s been no Panorama investigating whether our already stretched courts will be able to cope with thousands more people having to represent themselves, no Dispatches about what happens when people struggling with benefit problems or houses in intolerable states of disrepair can’t get legal help, and no Daily Mail campaign to force a government u turn.

The last one, I admit, is fairly unlikely.  But it appears it is not just the government prepared to leave the outcome of this policy to chance.  The chance, that is, that the legal profession itself will pick up the slack because, after all, lawyers earn a fortune and should be forced to give some of it back, for example by paying a levy on their practising certificate to fund law centres.

It is true that while there is no direct equivalent for lawyers of the Hippocratic Oath there is a commitment to uphold the rule of law, part of which must surely be ensuring everyone is able to have access to the law as and when they need it.  It is, nonetheless, quite a leap from this to requiring the legal profession to pay what would effectively be a lawyer tax.

Lawyers aren’t terribly popular, but this seems a bit harsh.  Fat cat surgeons aren’t expected to pay for hip replacements the NHS can’t afford; rich, greedy bankers aren’t expected to fund credit unions; expenses-laden MPs aren’t expected to pay for the upkeep of Parliament.  You get my drift.

Equally unfeasible is trying to transform pro bono, free legal advice given by lawyers, into a compulsory add-on to the day job.  There are all sorts of reasons why this is a bad idea, not least that it is unreasonable to expect a mergers and acquisitions lawyer by day to turn seamlessly into a social welfare lawyer by night.

That’s not to say city lawyers and law students don’t have a valuable contribution to make or that current arrangements couldn’t be more strategic.  I’d go so far as to say they probably should have to get down and dirty with the real people at some point in their career, so I like the requirement recently introduced in New York for all law students to perform 50 hours of unpaid work of a condition of practicing in the state.

But making sure all lawyers understand the sharp end of their profession is a far cry from adopting it as your policy for maintaining the rule of law, which is what the government seems to be doing with its ‘community legal companions’, law students to advise people preparing to appear in court without a lawyer.

What is most shocking about this, if not unfortunately at all surprising, is that we are quite happy to fob off those with some of the most fundamental and complicated legal needs on to the well meaning but unqualified.

We may not have a national legal service to parallel the national health service (and we may not have that for much longer either) but we will all be the poorer if justice is dependant on ability to pay.  What’s just as depressing is that the government seems effectively to have abdicated all responsibility for developing an alternative.

And there must be alternatives.  It cannot be that we are happy to consign tens of thousands of people to a justice black hole where they have no means of enforcing their rights.  Equally, a piecemeal approach, propping up one law centre here, throwing recurrent lifelines to another one there, is neither desirable nor sustainable.

Some time ago the justice minister Lord McNally told a Legal Aid Practitioners Group conference that ‘it is time to move on from LASPO’ (the Legal Aid, Sentencing and Punishment of Offenders Act 2012).  In one respect he’s right, it is certainly time to move on from arguing that the cuts are unjust and will be terribly damaging to many of the poorest and most disadvantaged.

In another sense, we can’t possibly move on from LASPO until we have found a coherent policy alternative to legal aid, one that government, society and the legal profession will accept.  This means rethinking what we mean by access to justice and building a system that works for individuals rather than just the lawyers that staff it.

Just hoping the ball lands on black is not the answer.

The devil is always in the detail

At the risk of offending anyone, I have to say I have never thought of conveyancing as the sexiest area of law. Of course it’s necessary and I have no doubt every conveyancer has at least one really exciting transaction story they can tell at parties, but it doesn’t often get to make the headlines, certainly not like its bolshy and sometimes unruly cousin personal injury.

That said, it is the area of law most of us are most likely to have contact with at some time or other, which makes it disappointing that this week the Legal Ombudsman (LeO) has been giving out rather mixed messages to consumers.  Yes I know the Ombudsman is not a ‘consumer champion’, and nor should it be, but it also shouldn’t be putting out confusing information or, worse, scaremongering. 

Based on really no evidence at all, at least nothing more powerful than anecdote, the LeO has warned that “alternative business structures (ABS) will create ‘conveyancing factories’ that exert a downward pressure on prices and could lead to an upsurge in complaints because of a focus on volume over service”.  I can hear dinosaurs everywhere rejoicing.

As the excellent Richard Moorhead has pointed out on his blog (so I won’t do it again here) there is nothing in the LeO’s report to suggest that ‘conveyancing factories’ necessarily lead to a drop in quality.  In fact, I would go as far to suggest that in some circumstances a factory (read, I assume, ‘automated volume system’) could quite possibly lead to an increase in quality by eliminating human error and ensuring a quick turnaround (runs for cover).

But I don’t just want to play devil’s advocate.  The problem with the tenor of the LeO’s report is that it strongly implies ‘alternative’ providers of legal services are going to have a detrimental effect on consumers and that fixed fees could lead to more complaints, neither of which is demonstrated by the LeO’s data (Richard Moorhead again). 

Now I don’t have the benefit of the LeO’s first-hand experience and wealth of data (even data that isn’t used properly), but I find extremely hard to believe that there could be more consumer complaints and more problems with legal services in general, and conveyancing in particular, than there were before the reforms ushered in by the Legal Services Act. 

The LeO’s own figures illustrate how, after years and years of rising relentlessly, the level of complaints about lawyers has fallen since it was set up.  There could be many reasons for this, including the unlikely one that the LeO is less visible than its notorious forebears.  All the same, it seems odd to start sounding the alarm bells, particularly in relation to fixed fees where the likely reason for increased complaints about them is simply that there are more of them on offer.

Still, at least we have the data, which is an improvement on the darkest of dark days when the Law Society handled its own complaints (can you imagine such a thing?).  And knowledge is power, or at least it should be, although I am not convinced the consumer is getting the true benefit of knowing a lot more than we used to about legal complaints.

The LeO asserts it may be years before complaints information, comparison websites, word of mouth and quality schemes will build up into ‘anything particularly meaningful or representative’.  Which is small comfort for consumers put on their guard against risky conveyancing factories by the self-same organisation.

The following warning about online or call-centre conveyancers is taken from the LeO’s Using a conveyancing lawyer: Ten helpful tips “you may be taking a risk if anything unusual, or unexpected, crops up during the transaction.  The individual responsible for your case may not have the same qualifications or experience as the lawyer on your local high street, which could mean that the advice you get may not be as informed as you’d like it to be”.

There is so much wrong and unhelpful with this statement I don’t know where to start.  Who knew it was the consumer’s job to work out whether the professional they are using has the requisite qualifications? I rather thought that was the point of regulation.  Silly me.  And how am I supposed to know whether or not my conveyancing transaction is likely to be “straightforward without any particular issue”? 

It’s taken me all afternoon, but in my capacity as ‘consumer champion’ I have managed to come up with some scenarios in which your conveyancing may not be the ‘straightforward’ kind the LeO refers to.  But don’t quote me on any of this.  I am not a lawyer.

  • If you are selling and getting divorced at the same time.  And good luck with that.
  • If your property is not registered with the Land Registry, which means checking back over at least 15 years of documentation to certify ownership.  Disputes over title are not uncommon, so if it’s not your dream home I wouldn’t bother going there.
  • If your property is leasehold, which is where one building or block has multiple owners.  If there are fewer than 60 years on the lease, you may also need a huge deposit (like 100%).
  • If your property isn’t a house.  Assuming flats are covered by the above, not sure what this means, bungalow? Boat? Barn?
  • If you are only selling part of your property, like a bit of your garden to a developer (it is presumably larger than mine)
  • If you’re selling at auction, homes-under-the-hammer style
  • If your property isn’t freehold.  
  • All of the above (God help you)

It’s worth pointing out that you would be well advised not to attempt to DIY any of the above transactions either, particularly if, like me, you get bored reading through the self assessment form.  With apologies to all the splendid licensed and solicitor conveyancers out there, it may not be the sexiest job but someone’s got to do it.

An empowered choice, or no choice at all?

It’s always good to discover you are right, particularly when you have largely been relying on common sense to prove a point. So to all those lawyers who said I didn’t know what I was talking about and that people weren’t interested in getting legal services online or at a supermarket I’d like to say ‘I told you so’.

This time I can give you facts, real facts about real consumers.  Nearly seven out of ten people like the idea of finding legal services on the internet and a similar number of young adults fancy being able to get them from supermarket providers. Even more unsurprising was the finding that more than eight out of ten consumers are more likely to take legal advice if they are given an up-front fixed cost.

This not-quite-earth-shattering news comes from a survey commissioned by Compare Legal Costs, a legal price comparison website.  Equally satisfying from my perspective was that fewer than four in ten people agreed that ‘solicitors are upstanding members of society’ and just over four in ten said solicitors were ‘arrogant’.

Having said that it can’t really be good that so many people still have a problem with lawyers.  On the plus side, I am quite sure that the changes in the legal market will see their reputation improve among consumers as they have to get serious about offering real value for money and high-quality customer service as well as expert legal advice.

There is, however, a potential downside to all this consumer choice, although not the one many lawyers highlight.  The danger is not so much that opening up the market will lead to sub-standard legal advice (although in some cases it might) but that consumers will be paralysed by choice.

Choice is, of course, a good thing.  As proponents of choice will tell you, it promotes competition, improves quality and drives down cost.  In the legal market it also means people are for the first time being offered a choice about how and when they access services as well as how much they pay for them.  On the other hand is what American psychologist Barry Schwartz has called ‘the paradox of choice’.

His argument is that while ‘autonomy and freedom of choice are critical to our well being, and choice is critical to freedom and autonomy’, having more choice than any other group of people have ever had before has not apparently made us any happier.  In fact, quite possibly the reverse.  Although some choice is undoubtedly better than none, more is not always better than less.

This is true across the whole range of choices we have to make every day, from the trivial (what to have for dinner, what flavour of jam to buy) to the fundamental (which school to send our child to, which mortgage to choose).  And there is evidence it is making us miserable, particularly those of us who are ‘maximisers’, ie. people who are less likely to settle for second best.

As you can imagine, this has a significant impact on what consumers really want.  You can argue about the specifics, for example whether price or service efficiency is more important, but what consumers really want is simplicity.  Yes, they want a service that meets their needs, but beyond that they want the choice to be simple and they don’t want to have to spend hours making it.

And so we come to the ‘purchase funnel’.  If you aren’t a marketing guru, and I include myself in that, the purchase funnel was invented in 1898 and suggests consumers go from ‘awareness to interest to desire to action, gradually reducing the number of options or brands they consider along the way’.

The funnel model has been used across many industries for decades, but consumers are now bombarded with so much information they are changing their shopping habits to deal with all the noise.  Contemporary wisdom has it that brand loyalty is vanishing and the response of many companies has been to step up marketing messages in order to engage with and keep their consumers.

Marketing managers must have been dismayed to learn that consumers are overwhelmed by all this information.  A survey of 7,000 consumers worldwide showed that a third of people continuously shop around, adding and dropping brands and constantly looking for alternatives; and a third abandon any sort of considered search and zero in on a single brand, not so much out of loyalty but as a response to an increasingly complicated choice process.

What may look like consumers exercising choice may in fact be them making no choice at all and apparent brand loyalty may be nothing of the sort, rather a ‘self-imposed simplification of the decision-making process’.  What consumers are now doing is not making a funnel purchase, but a ‘tunnel purchase’ and often blinded by the tunnel vision that implies.

The researchers who ‘discovered’ the tunnel also found the single biggest thing companies can do to combat this problem is make the decision simple, by which they mean making it easy to get trustworthy information and find their way around any different purchase options.

What does this mean for providers of legal services, particularly when in many cases consumers are not only dealing with a multitude of choices, they are doing it for a product or service they probably know even less about than they do credit cards, food or mobile phones?

For a start, I am quite sure it doesn’t mean sticking to the one-size-fits-all approach that law firms offered in the past and some would quite like to keep offering.  Equally it is worth noting, as the energy companies have found, that regulators (or in this case, the government) will not be afraid to intervene if the options become so overcomplicated consumers find themselves with the wrong tariff, product or service.  Competition isn’t everything.

It does involve law firms, and their competitors, offering legal services people really want in a way they really want them.  It also requires the front-line regulators to provide clear, impartial information and guidance to support consumers in making choices and the Legal Services Board to evaluate the collective effect of individual choices and ensure there is no negative impact on access to justice.

Whether you welcome or fear it, consumer choice is here to stay.  How you respond is up to you.

Victimisation? John Terry doesn’t know the meaning of the word

After a wonderful summer of superb athletic achievement and fantastic gamesmanship that created a general feeling of bonhomie and all round loveliness, this week we are definitely back down to earth with a bump with the final, we hope, instalment of the John Terry chapter of the ‘Footballer Misbehaves Shock’ staple of the tabloid press.

It’s hardly surprising that quite a few people, me included, who usually look forward to the football season have lost all enthusiasm for a sport in which it’s almost obligatory to shout at refereeing decisions and where taking a dive and rolling around in ‘agony’ in the hope of getting some sort of advantage is an art form.

If anything, the game’s reputation seems to have become a little uglier recently.  Despite years of campaigning to kick racism out of football and a zero-tolerance policy, barely a week seems to go by without controversy, proving that for all the supposed progress, racism still seethes beneath the veneered surface, just waiting to burst out.

Listening to BBC 5 live on Monday, it is also quite clear that no-one can agree on Terry’s case, in particular whether the FA is right to bring disciplinary action when he’s already been cleared by a court.  This is hardly surprising given the sometimes quite alarming emotions stirred up by football, but it’s really quite straightforward if you stop thinking football and start thinking work.

Having been cleared of the criminal offence of racial abuse by Westminster Magistrates’ Court in July, Terry is now facing the FA charges of using ‘abusive and/ or insulting words and/ or behaviour’ towards Anton Ferdinand during a match last October.  Different charges, brought under different types of law and with different standards of proof.  Being innocent or guilty of either charge is not mutually exclusive.

This discrepancy, if indeed it is one, is not unique to football.  PC Simon Harwood, acquitted of killing Ian Tomlinson during the G20 protests in London, was later found guilty of gross misconduct and sacked for discrediting and undermining public confidence in the police service.  Similarly, it is not difficult to find plenty of examples of professionals, including lawyers, struck off by their regulator but not charged with a criminal offence.

On the other hand, the chances of escaping disciplinary action at work if you have been found guilty of a criminal offence are much slimmer, although it isn’t cut and dried unless its specified in an employment contract or staff handbook.  But you can see how being found guilty of hurling racist abuse could make you unsuitable for your job even if it wasn’t done at work.

Unfortunately, it doesn’t seem to affect footballers’ suitability.  Terry and his supporters believe the FA are victimising him by bringing their own charges.  I know we shouldn’t expect footballers to know what they’re talking about, but I am quite sure asking him to account for his actions (he admitted using racist language) doesn’t constitute victimisation.

Even if the FA finds Terry guilty and imposes a ban, it is unthinkable that he’ll lose his job.  Luis Suarez, found guilty of using a derogatory racist slur towards another player, was banned for eight matches last year but he has just managed to secure a pay rise to £120k a week from Liverpool football club.  Nice work if you can get it.

On the other hand, last year footballer Mark McCammon was dismissed for alleged misconduct by Gillingham FC following his complaints of racial discrimination.  In July, an employment tribunal found he was unfairly sacked after being racially victimised.  He was awarded nearly £69k for loss of earnings and breach of contract.  More than I earn in a year, but a lot less than Suarez’ new weekly pay packet.

Whatever the outcome of Terry’s disciplinary hearing, I think we can safely conclude any penalty he receives is not going to have any serious impact on his long term financial security or football career.  You can be sure that wouldn’t be the case for the rest of us.