Tag Archives: access to justice

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.

In praise of the Public Law Project

Access to justice was not something I thought about much until I started working for Which? the consumer organisation. I had just assumed that when you needed to use the law to solve a problem you’d be able to.  But negotiating the legal system is not an easy task, even with the help, or sometimes hindrance, of a lawyer.

I spent a lot of time not being very nice about lawyers and berating them for not treating their customers fairly.  As far as I could see, access to justice was being undermined by their old-fashioned, expensive and opaque services.  I saw the Legal Services Act 2007 as a great achievement, which would open up the legal market and make it more accessible for thousands, if not millions, of people.

All well and good, but once I started to realise access to justice isn’t just about being able to get advice about your divorce on a Sunday or draft a will on the internet.  The justice system is much wider than just high street solicitors and big, multi-million city firms.  For many people, justice means getting advice about their housing or debt problem; or challenging an immigration decision or a benefit cut; or getting redress for an NHS mistake.

Fortunately this realisation coincided with my discovery of the Public Law Project.  Here was a charity that wasn’t just campaigning for change, as I’d been doing at Which? and subsequently, to a lesser extent, at a national law firm, but an organisation directly helping people secure access to justice in often profoundly important areas.

Since joining the board I have developed an even greater respect for the work PLP does with the bare minimum of resources but totally dedicated staff.  And this work is set to become more and more important in the light of budget cuts that threaten the services many individuals and communities rely on.

Public officials have unenviable decisions about what will be cut, but the difficulty of their task is not an excuse to ignore people’s rights and entitlements.  Coupled with the significant cuts being proposed in the scope of legal aid there is a real danger that some of the most vulnerable groups in society will suffer disproportionately.

Which is where PLP comes in.  We have a unique blend of research, training and casework enabling us to influence policy makers and decision makers across government.  It is designed to help improve access to public law remedies and establish important principles to protect the most disadvantaged from poor decisions by both local and national organisations.

The focus of our recent research has been the judicial review process and how claims are concluded.  We are now working with Essex University on a major project, funded by the Nuffield Foundation, looking at the outcomes for claimants and whether judgements change legislation and practice.

We recently supported the charity Medical Justice to bring a case about the UK Border Agency’s ‘exceptions policy’, which involves giving some migrants less than the standard 72 hours notice of removal.  These often include vulnerable people at risk of suicide or self harm and unaccompanied children.  The government said those due to be removed had ‘effective access to the courts’, but the High Court quashed the policy, saying the practical difficulties in getting legal assistance meant those affected had no ‘adequate right to justice’.  The government is appealing the decision.

In another example, PLP, working with the Law Centres Federation, discovered local authorities were systematically passing young homeless people from one department to another, often refusing to help them at all.  This in contradiction of the law stating social services are responsible for homeless 16 and 17 year olds and authorities must provide a package of support, not just housing.  PLP helped support and train advisers working with homeless children to ensure they were properly accommodated.

These cases barely scratch the surface of PLP’s work, but they illustrate the impact this small organisation has year after year.  By ensuring access to justice isn’t just a slogan but a reality, PLP has more than demonstrated its worth.  It is a great achievement to have been doing this for 21 years and I am honoured to sit on the board of such an important and influential organisation.  As Sir Henry Brooke, PLP patron, put it “if the Public Law Project did not exist, someone would have to invent it – quickly”

Can a leopard change its spots (and, more importantly, will we believe it if it does)?

Yesterday, as I sat in a planning meeting for the Sound off for Justice campaign, I became quite depressed that, for all its boldness and ingenuity in fighting legal aid cuts, the Law Society was probably going to fail.  More depressing still, while a major reason is undoubtedly an intransigent government hell bent on cutting at all costs, part of this failure will be because it is being led by the Law Society.

I haven’t gone native, but I’ll put my hands up and say I’ve been very impressed with Sound off for Justice, and the Law Society now feels a million miles from the organisation I’ve spent years berating for its protectionism and failure to embrace change. The problem is that the general public probably don’t believe that the Society is doing it ‘because it is the right thing to do’ and see Sound off for Justice as driven by self interest.    

This bothers me.  Why don’t people see that access to justice is as important as access to healthcare or education?  Although the Legal Aid and Legal Advice Act of 1949 didn’t set up a national legal service, it did recognise that equality of access and the right to representation before the law was fundamental to a just society.  I guess many think legal aid is something for ‘benefit scroungers’ and other ne’er do wells. that if they don’t break the law and keep their heads down they’ll be ok. 

But it doesn’t take much to be in the wrong place at the wrong time and suddenly find you need legal assistance.  The government has said it has no intention of removing the right to police station advice, but has, worryingly, left the provision in the justice bill.

And it doesn’t take much to become a victim of clinical negligence – it happens to one in ten people who undergo treatment in hospital.  You won’t get legal aid, so without a stash of cash you won’t get justice. 

It also doesn’t take much, if you are one of the thousands who’ve lost their job, to find yourself at the wrong end of a repossession order.  You will get legal aid if you are about to be made homeless, but then it’s probably too late.

Then there’s the ‘legal aid fat cats’, those criminal legal aid barristers raking it in.  One of them is David Cameron’s brother, who was paid over £1.13m in legal aid fees over the last decade.  Another is the brother of Justice minister Crispin Blunt, who took an almost unbelievable £5.86m over the same period.  This diverts the public’s attention from those at the sharp end of civil legal aid who probably earn less than me (and, arguably, I’m not doing anything particularly useful).

Sound off for Justice rightly targeted decision-makers rather than the mass general public.  But with ministers failing to respond, maybe now it’s time to garner more public support.  The 26,000 signed up to the campaign is a start, but far more are needed if Tory MPs (and, let’s face it, it is Tory MPs) are going to start worrying that cutting legal aid is a vote loser. 

Despite being a campaign genius (my own words) I don’t know how they’ll do  this.  Never mind ‘giving’ fatigue, I fear we are entering a period of ‘campaign’ fatigue, or frankly just general fatigue at trying to keep all the plates spinning, as jobs are lost, services slashed and prices rise.  If people are targeting their efforts, they are probably not going to choose a campaign run by lawyers for the benefit of other lawyers, even if it’s not primarily lawyers who will suffer.  I understand this.  But it will be the most vulnerable in society who lose out, and don’t forget, that could be you.