Tag Archives: legal aid cuts

A friend in need

Everything changes. Mountains erode, coastlines crumble and even Bruce Forsyth eventually retires. But if you think the pace of change is a little too quick there is still one place that remains constant – head on over to the comments section of the Law Gazette. You can be sure, whatever is going on elsewhere, there you will find lawyers unhappy about something, and normally it’s something said by the Legal Services Consumer Panel.

Predictably, the Panel’s latest report calling for a ‘culture change’ in attitudes towards McKenzie friends went down like a lead balloon with lawyers. McKenzie friends, it said, are a ‘legitimate feature of the modern legal market’ and increase access to justice. Much of the legal profession, it seems, does not agree.

Once upon a time McKenzie Friends were just selfless volunteers who, out of the goodness of their hearts, gave up their own time to help litigants in person who can’t, or don’t want to, use a lawyer, by providing moral support, taking notes, offering advice and helping prepare for court. Now, shockingly, they are increasingly starting to charge.

Lawyer outrage is understandable. They spend quite a lot of time and money qualifying and it must be pretty galling to have studied for years and struggled to get a training contract only to see a lot of unqualified so-and-sos come along and undercut you. And because they aren’t regulated they could be doing heaven knows what.

Except in most cases they aren’t. What they are doing is providing valuable support for people who quite conceivably would otherwise have no access to justice. With legal aid withdrawn from all but the most acute cases, the number of litigants in person, those attending court without a lawyer, is increasingly dramatically.

On the face of it, I’m a fairly knowledgeable, confident and determined person, but I wouldn’t want to represent myself. If someone who’d been through the process before offered me a helping hand for a reasonably modest fee, I’d probably take it. And let’s be honest, the fact s/he isn’t a lawyer is probably a bonus.

It is perfectly reasonable to expect that justice can still be served without legal representation. Indeed it is vital this is the case, particularly when the government seems to be determined to remove lawyers as much as possible from the process of law. This may seem a bit bonkers, but it’s what we’ve got to work with.

Obviously there are risks in unqualified, unregulated and uninsured people supporting litigants in person, but arguably these are outweighed by the alternative, which is people deciding not to go to court at all, or turning up without the slightest clue of what they are doing.

Amazingly, most consumers, even those unable to afford a lawyer, are not stupid and are quite capable of understanding the limits of support that can be offered by a McKenzie friend. And of course, advice is not confined to the unregulated – lawyers are quite capable of not living up to their own professional standards. What consumers need is not a closed shop, but clear, reliable and easily accessible information about their options.

McKenzie friends themselves have acted on the Panel’s recommendation and plan to set up their own trade association to represent those non-lawyer advisers who charge fees.  I would suggest they get on with it, because the vast array of McKenzie friend websites already out there risk confusing consumers.  I would also like to suggest they stop using hourly rates and come up with some sort of fixed-fee system, otherwise they are in danger of creating the same cost uncertainty that has annoyed consumers of legal services for years.

I do wish lawyers would stop being so afraid of change and innovation. Granted, a lot of the change in the legal market at the moment is not of a particularly positive variety, but getting hot under the collar about something that might mitigate at least some of its worst effects is counterproductive. And it will happen anyway.

“The only way to make sense out of change is to plunge into it, move with it, and join the dance” Alan Watts

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.

Don’t be fooled by the Big Society

This is a revised version of a blog published on the Convergence website in February.

What is the Big Society? We were told it was about ’empowering communities’.  Cameron says its his ‘great passion’.  Steve Moore of the Big Society Network (no I don’t know what it does either) has said it is the sum of a million small things.  However, I am finally starting to get it and it seems the sceptics were right all along.  It is just a smoke-screen for cuts and now we are starting to see the proof.   

Before I go any further I should confess that I am one of those Big Society sceptics and I am also a bit of a lefty, so I am bound to grab any opportunity to score some cheap political points.  But all my attempts to get to the bottom of this ‘defining vision’ failed, even when I had the opportunity to question Mr Moore himself (he just got more and more annoyed as I got more and more confused). 

One of my big concerns is that there is a big difference between people getting together to run, say, a single mums’ support group once a week or campaigning for a 20mph zone, and making the commitment to take over a library, or even set up a school. We are not all Toby Young and most of us don’t have the time or the skills to take on these responsibilities (and there is also something a bit distasteful about saying enthusiastic volunteers can just pick up when the professionals, eg librarians, lose their jobs). I won’t even get into how I feel about letting parents set up schools all over the place. PS I am a parent.

Equally as absurd is expecting cash-strapped charities to step in where the public sector has had to step back. For years charities, certainly the small, community ones expected to build the Big Society, have been unable to capacity build effectively because grants are always ring-fenced for specific projects.  I used to set policy for lottery grants and witnessed the absurdity of perfectly good charities having to reinvent themselves, repackage what they do and fill in reams of paperwork to get their hands on even the smallest amounts of cash.  Then, when the project was over, they had to do it all again, possibly even for the same funder.  But now there is no more cash…

So maybe volunteers are the answer, maybe Cameron is right, maybe we should expect charities to rely less on money and more on ‘gifts in kind’.  I am a trustee of a small legal charity and much as we love lawyers helping us on a pro bono basis, what we really need is money to pay our excellent core staff, not city lawyers giving legal advice in an area they probably know nothing about.  It comes back to the professionalism point.  Some volunteering can do more harm than good.

I am also fearful that by relying on donations, financial or otherwise, we are unwittingly recreating the paternalistic Victorian philanthropists who chose between the ‘deserving’ and ‘undeserving’ poor.  Of course, Daily Mail ‘journalists’ and their followers in government will tell you there are undeserving poor (largely, of course, benefit cheats of which I am sure there are millions). But I think the distinction is more subtle than that and worthy of proper attention, not just recourse to a Daily Mail headline.

And now, the campaigning website False Economy, tells us that at least 2,000 charities are facing budget cuts as local authorities reduce their funding.  They point out that ‘these cuts are not just to ‘nice to have’ groups, but organisations providing services for older people trying to maintain independent lives, vulnerable children and abused women.’ Cutting their funding doesn’t just cause misery and distress, it only puts pressure onto other statutory services like the NHS.  How is that the Big Society?

The Guardian writes today about a Home Start centre in Hull, the 11th most deprived region in the country, losing its £107,000 grant.  If it closes, after 25 years, then 167 families with 406 children will be without a service they rely on and that costs just £21 a week for each family.  Pretty difficult to see how that could be done any cheaper.  How is that the Big Society?

Yesterday, Citizens Advice, which provides advice and support to more than 2 million people, said that Bureaux across the country are facing closure because of budget cuts.  It said the situation in some areas was ‘desperate’.  Government proposals to remove social welfare and housing cases from legal aid will only exacerbate the situation.  So how will the poor and vulnerable get justice?  How is that the Big Society?

When I first wrote this blog, I was just a sceptic, but now I am angry.  Far from empowering communities, the Big Society and its evil twin Budget Cuts are in danger of ripping them apart.  I refuse to believe there isn’t a more responsible way to solve the economic crisis.  But then I suppose I am rather missing the point.  The Big Society may be a cover for the cuts, but the cuts are the cover for a deluded ideology that bears no reflection on real people’s lives and is happy to cut much of society adrift.  If that’s David Cameron’s ‘great passion’ then we are all in big trouble.

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.