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Why David Cameron's "lurch to the right" must not be above the law
Like John Hirst, the former prisoner who studied law and put the UK on-the-spot about the proportionality of imposing a total ban on prisoners using the vote, David Cameron is not above the law. In a question on fox hunting once in Prime Minister’s Questions, Cameron voluntarily offered the information that he had not done anything unlawful; this was a stupid strategic error, as nobody had accused him of having done anything unlawful. The ‘rule of law’ holds the supremacy of the law, everyone is equal in front of the law, and nobody is above the law.
David Cameron does make the law however for the time-being. He can effectively do what he wants: hence the famous aphorism of parliamentary supremacy of Sir Leslie Stephen ((1832–1904), “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” [The Science of Ethics, p. 145 (1882).]
Eastleigh was a tragedy for Cameron. Having set things up nicely on how his party would offer a referendum on Europe in 2015, which kept the Tory Euroskeptics happy for the time-being, the UKIP backlash was fully active last Thursday. Whilst UKIP does not have a single MP yet, they still threaten the Conservatives with the power to deny them an overall majority. And yet, David Cameron knows that he cannot unilaterally have special terms for the UK’s membership of Europe. Sure, directives can be applied by our Government according to parliament’s wishes, but if he wants anything more he will have to leave Europe. He is not above the law, but he could repeal the European Communities Act (though it would be difficult for him to do so). Even if David Cameron decides that he wishes to tear up the Human Rights Act, he will still have to submit human rights allegations to Strasbourg unless he decides not to become a signatory to the European Convention of Human Rights. Louise Mensch has described that the Human Rights Act itself is faulty, whereas most learned experts feel that the implementation of its analysis could be improved, and we are better off doing the proverbial in the tent than outside it. Leaving the European Convention of Human Rights denies us any moral authority on commenting on the human rights of other jurisdictions, and sets out a very dangerous signal in terms of reputation on our attitude towards inalienable human rights as per Delhi for example.
The more insightful conclusion is that David Cameron is desperate. He was initially tolerated as Prime Minister, but generally even this has deteriorated to being positively loathed by people within his party and outside of it. His Coalition, for example, has legislated for the Health and Social Care Act, which contains one clause section 259(10), which in conjunction with the Data Protection Act and Human Rights Act, is an area where the European Court of Human Rights could easily find the approach of GPs to data confidentiality unlawful; this could be determined one day in a test case similar to S and Marper v UK. It is helpful indeed that lawyers are able to act on poor legislation, as indeed they recently had to do with Iain Duncan-Smith’s mandatory work placement schemes (in the case of Cait Reilly). However, it is the democratic deficit, that laws appear to come from nowhere (and certainly not contained in any party manifesti at the time of the 2010 general election), which is most worrying. It is not so much a case of this Coalition ‘running out of things to do'; it is rather a case of this Coalition ‘running out of things to destroy’.
Unpacking the legacy of this Coalition is going to be extremely painful. George Osborne’s “badge of honour”, the triple A rating, was humiliatingly stripped off the Government, as Moody’s caste judgement on their deficit reduction plan. Construction performance hit a 41 month low this morning. Anyone with the most rudimentary understanding of economics will appreciate that the Coalition terminating ‘Building Schools for the Future’, and other key infrastructure projects, put the brakes on the economy which had been recovering in May 2010. Add to this an increase in 2.5% in the VAT rate, encouraged by corporate CEOs writing letters to the Times, and murder of consumer spending, and you can easily understand how corporate interests saw the UK’s economy being sent down the river. But it’s ok because we don’t have a functional BBC. The BBC, which is not covered by the Freedom of Information Act, is not obliged to explain its ‘creative authority’ for why its journalists never explain why the deficit exploded in 2009 due to a £1 tn recapitalisation of the banks. It does not need to explain either on the basis of its creative licence either why it barely mentioned the activities of the NHA Party in Eastleigh, or why the criticisms of the 2012 Health and Social Care Act (and the concomitant statutory instrument 2012/057) evade scrutiny. However, the reality is that the UK has been trashed like a Bullingdon restaurant party; whether this is the scrapping of the education support allowance, the implementation of tuition fees, the shutting of libraries, the poor regulation which allows ‘value’ horsemeat to be fed in school dinners, the privatisation of the NHS, the triple dip recession, rioting in the streets, or otherwise, the UK at the moment is a disgrace compared to what it could and should be. David Cameron’s “lurch to the right” will not get round that – his only way to get above the law is to rewrite it fast. The other way to get above the law is to annihilate access-to-justice, and by stopping access to the European Court of Human Rights, or any high street mechanism of achieving justice (for example, high street law centres or citizen advice bureaux). No comment.
Why David Cameron's "lurch to the right" must not be above the law
Like John Hirst, the former prisoner who studied law and put the UK on-the-spot about the proportionality of imposing a total ban on prisoners using the vote, David Cameron is not above the law. In a question on fox hunting once in Prime Minister’s Questions, Cameron voluntarily offered the information that he had not done anything unlawful; this was a stupid strategic error, as nobody had accused him of having done anything unlawful. The ‘rule of law’ holds the supremacy of the law, everyone is equal in front of the law, and nobody is above the law.
David Cameron does make the law however for the time-being. He can effectively do what he wants: hence the famous aphorism of parliamentary supremacy of Sir Leslie Stephen ((1832–1904), “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” [The Science of Ethics, p. 145 (1882).]
Eastleigh was a tragedy for Cameron. Having set things up nicely on how his party would offer a referendum on Europe in 2015, which kept the Tory Euroskeptics happy for the time-being, the UKIP backlash was fully active last Thursday. Whilst UKIP does not have a single MP yet, they still threaten the Conservatives with the power to deny them an overall majority. And yet, David Cameron knows that he cannot unilaterally have special terms for the UK’s membership of Europe. Sure, directives can be applied by our Government according to parliament’s wishes, but if he wants anything more he will have to leave Europe. He is not above the law, but he could repeal the European Communities Act (though it would be difficult for him to do so). Even if David Cameron decides that he wishes to tear up the Human Rights Act, he will still have to submit human rights allegations to Strasbourg unless he decides not to become a signatory to the European Convention of Human Rights. Louise Mensch has described that the Human Rights Act itself is faulty, whereas most learned experts feel that the implementation of its analysis could be improved, and we are better off doing the proverbial in the tent than outside it. Leaving the European Convention of Human Rights denies us any moral authority on commenting on the human rights of other jurisdictions, and sets out a very dangerous signal in terms of reputation on our attitude towards inalienable human rights as per Delhi for example.
The more insightful conclusion is that David Cameron is desperate. He was initially tolerated as Prime Minister, but generally even this has deteriorated to being positively loathed by people within his party and outside of it. His Coalition, for example, has legislated for the Health and Social Care Act, which contains one clause section 259(10), which in conjunction with the Data Protection Act and Human Rights Act, is an area where the European Court of Human Rights could easily find the approach of GPs to data confidentiality unlawful; this could be determined one day in a test case similar to S and Marper v UK. It is helpful indeed that lawyers are able to act on poor legislation, as indeed they recently had to do with Iain Duncan-Smith’s mandatory work placement schemes (in the case of Cait Reilly). However, it is the democratic deficit, that laws appear to come from nowhere (and certainly not contained in any party manifesti at the time of the 2010 general election), which is most worrying. It is not so much a case of this Coalition ‘running out of things to do'; it is rather a case of this Coalition ‘running out of things to destroy’.
Unpacking the legacy of this Coalition is going to be extremely painful. George Osborne’s “badge of honour”, the triple A rating, was humiliatingly stripped off the Government, as Moody’s caste judgement on their deficit reduction plan. Construction performance hit a 41 month low this morning. Anyone with the most rudimentary understanding of economics will appreciate that the Coalition terminating ‘Building Schools for the Future’, and other key infrastructure projects, put the brakes on the economy which had been recovering in May 2010. Add to this an increase in 2.5% in the VAT rate, encouraged by corporate CEOs writing letters to the Times, and murder of consumer spending, and you can easily understand how corporate interests saw the UK’s economy being sent down the river. But it’s ok because we don’t have a functional BBC. The BBC, which is not covered by the Freedom of Information Act, is not obliged to explain its ‘creative authority’ for why its journalists never explain why the deficit exploded in 2009 due to a £1 tn recapitalisation of the banks. It does not need to explain either on the basis of its creative licence either why it barely mentioned the activities of the NHA Party in Eastleigh, or why the criticisms of the 2012 Health and Social Care Act (and the concomitant statutory instrument 2012/057) evade scrutiny. However, the reality is that the UK has been trashed like a Bullingdon restaurant party; whether this is the scrapping of the education support allowance, the implementation of tuition fees, the shutting of libraries, the poor regulation which allows ‘value’ horsemeat to be fed in school dinners, the privatisation of the NHS, the triple dip recession, rioting in the streets, or otherwise, the UK at the moment is a disgrace compared to what it could and should be. David Cameron’s “lurch to the right” will not get round that – his only way to get above the law is to rewrite it fast. The other way to get above the law is to annihilate access-to-justice, and by stopping access to the European Court of Human Rights, or any high street mechanism of achieving justice (for example, high street law centres or citizen advice bureaux). No comment.
Prisoner voting: "I thought that would never happen to me" syndrome
I never thought I would ever become disabled due to meningitis. But I did – in 2007 in fact.
I contracted meningitis out-of-the-blue, and I spent two months in a coma.
How the law deals with prisoner voting is all about our attitude to prisoners and proportionality. I am not saying at all that some people might become prisoners ‘by accident’, but I think the attitude held by some that ‘I will never be a prisoner’ is dangerous. There are some people who will find themselves on the wrong side of the law, having disobeyed the notion of legal responsibility, and they will require punishment. However, there will be some who go to prisoner for less serious offences, and whether they vote or not is an artefact of the timing of their prison sentence. One would hope that the majority of these people can be successfully welcomed back into society, as productive members of society.
It is particularly dangerous for some people to think that they will never go to prison. Fraud by false accounting, insider trading, or tax evasion, the so-called ‘white collar crimes’, are not specific to the lower classes; in fact, quite the opposite. More’s the point, human rights are universal rights, and we have opted into the European Convention of Human Rights; it’s simply impossible for us to pick-and-choose which rights we wish to be party to, such as right to be free from torture, either on a geographical or temporal basis, and nobody is above the law.
And, more importantly, the central doctrine of the law is that of proportionality. Therefore, a reasonable mature reaction would be to consider how we can apply the advice of the European Court of Human Rights to say that perhaps a total ban on prisoner voting is for those who we genuinely wish to be disenfranchised from the decisions of society for a considerable period of time.
An easy option is to run with very populist arguments, but playing with the topic of prisoner voting is as reckless as a libertarian wishing to dissolve the National Health Service and then finding he develops terminal cancer, potentially. People who wish to buy into a system should be allowed to, if it is reasonable.
I have never been to prison, for the record. I have been to public school, however.
Will opposites attract?
I am posting this following a recent tweet this afternoon. Incidentally, my article got a very hostile reception the first time around, Sundeep and Neil!
Lawyers in training often become bewildered as to how parts of their course ultimately gel together. This possibly contributes to their uncertainty in choosing which part of the law to specialise in. For example, how on earth does constitutional law, including the rule of law and human rights, relate to the different specialisms of law, such as immigration or housing? And what have they got to do with the big powerhouse corporate law firms, if anything?
A surprising fusion of these ingredients could hold the key to solving a different problem that has been vexing English and Welsh law for several decades, at least. That is, the issue of what to do about the provision of legal aid.
A community law centre, where the lawyer might examine a sensitive landlord-tenant dispute, may seem ‘worlds-apart’ from the work of a corporate lawyer, who may be advising on a multi-billion-pound, headline-grabbing deal. However, it is possible that these circles might mix more in future, due to the current circumstances.
Access to the law: back to the basic constitutional law
One of the very first things that law students focus on in their constitutional law courses is the ‘rule of law’. Indeed, the rule of law underpins the work of both ‘divisions’ of lawyers: the barristers and the solicitors.
In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the ‘rule of law’ in some (but not all) societies. Some of Raz’s principles include the fact that the courts should be accessible, i.e. no man should be denied justice, and that the principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
And what of the actual reality of today, in England and Wales?
“The Government strongly believes that access to justice is a hallmark of a civilised society. The proposals set out in this consultation paper [on the reform of legal aid] represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for the most serious cases in which legal advice or representation is justified.”
‘A brief history of legal aid’
Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949, with the aim of providing equality of access and the right to representation before the law. The scope of legal matters covered in 1949 was very tightly drawn.
However, today legal aid in England and Wales costs the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world. It is argued that the current scheme is available for a too wide a range of issues, including some which should not require any legal expertise to resolve. The provision of legal aid is now governed by the Access to Justice Act 1999 and supplementary legislation.
The possible effect of the proposed legal aid reforms
Many civil cases will no longer be eligible for legal aid, and fees paid in civil and family cases will be cut by 10% across the board, according to Ministry of Justice plans set out in the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, released in November 2010.
The UK government has estimated that, under the plans, £350m will be saved from the Ministry of Justice’s budget by 2014/15, if its proposals are implemented in full.
Ken Clarke QC MP, the Secretary for State for Justice and Lord Chancellor, has said in an interview that,
‘I believe that the taxpayer should continue to provide legal aid to those who need it most and for serious issues. But the current system can encourage lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which may not always ensure the best result for those involved. The proposals I have outlined suggest clear tough choices to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in society and the efficient performance of the justice system.’
Reaction from the solicitors
The cut in legal aid may offend the rule of law. For example, the Law Society Chief Executive, Desmond Hudson, has warned that:
‘If the government persists with these proposals, it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law. Legal aid clients are some of the most vulnerable in society and good legal representation where required is essential if they are to obtain justice. The Society will now consider the green paper in detail.’
The effect on the high street – the community law centres
‘Law Centres’ employ solicitors and case-workers who specialise in debt, discrimination, housing, employment, welfare benefit, community care, mental health law, and immigration and asylum law. Their initiatives are truly inspirational.
In an open letter dated October 2010, Julie Bishop, Director of the Law Centres Federation, provides a very interesting description of the impact that the financial recession – a possible driver in the need to cut costs in legal aid services – has had on the high street legal services:
“We serve 120,000 clients every year. The recession is hitting our clients hard. Already, the Employment Tribunals Service has recorded an increase from 10,800 to 19,000 in the number of cases related to unfair dismissal over the past year [October 2009-10]. ACAS has recorded a 13% increase in enquiries for conciliation services. Law Centres have experienced a 30% increase in clients assisted with employment and discrimination cases.”
An example of where the Law Centres have made a substantial impact is in Brent. Brent Community Law Centre stated that the cuts to legal aid will leave two options for those in poverty on Jobseeker’s Allowance: “a move from poverty to extreme poverty, or possession or eviction if they do not pay their rent.”
They cite that a single person living in a one-bed flat paying £180 per week will have to contribute £18 to the rent out of a weekly income of £65.45, leaving £47.45 for all other expenses including fuel. A separate (but linked issue) which compounds vulnerability is the proposed capping of housing benefit. It is estimated that this will cost claimants in Brent an average of £8,817,844 per year. This loss is to be shared among 1,988 claimants. If their rents are not reduced, they will have to pay £4,436 per household out of their own income. Currently, the Brent Law Centre is able to advise on this issue.
Brent Law Centre argues there will inevitably be far more possession cases in the county court because landlords, whether council or private, will bring court action for rent arrears. In addition, they believe that the impact on costs for other departments, such as social services and child protection need to be assessed.
Brent Law Centre, only through the goodwill of an army of unpaid volunteers, is currently able to provide legal advice and assistance for residents of Brent on a range of legal issues including education, employment, housing, immigration, mental health, public law and welfare benefits.
An unlikely solution?
It has not gone unnoticed that one of the effects of losing £350m from the existing £2.1bn budget may be to put corporate law firms under greater pressure to contribute to the provision of legal aid.
High profile pro-bono interventions by the household names in corporate law can become tied to big international events – such as helping out at the Sierra Leone war crimes tribunal (Weil Gotshal & Manges), or representing wounded soldiers in compensation cases against the Ministry of Defence (Hogan Lovells).
Nonetheless, doing pro bono has become attractive to graduates in an increasingly competitive job market, where law firms are keen to attract the best graduates, and graduates are keen to demonstrate their social awareness.
However, it is true that many newly-qualified graduates do contribute much time for free to the local community, often in very deprived areas, but find the work immensely fulfilling. This is despite the fact that their Managing Associates and Partners will not tolerate any compromises in their professional ‘day job’.
Who knows where this is heading?
The ideal outcome might be for a restructuring of legal aid services, such that the public and lawyers have a clear idea where the money is going to, and which enables fair access to legal services for the public. The crunch question inevitably becomes: “where this money is coming from, if it’s not the taxpayer?”
Brent Law Centre is just a single example of where professional lawyers give their skills free-of-charge for the benefit of the community, but it would be tragic to see a situation where lawyers cannot even do this because of the ‘system’.
It might be, even, that the corporate lawyers have a crucial part to play for the benefit of society, in contributing towards the maintenance of legal aid in the high street law.
Law centres and legal aid funding
This is not a headline you will normally see.
Firstly, I should like to acknowledge Krish, who tweets at @TheTCHawk, for providing the inspiration for this blogpost. He has recently written on his experience with the Citizens Advice Bureau for which he works.
Instead, I have been working in a famous law centre in London for the last few months. This has been an incredibly rewarding for me, as I am looking forward to studying law further in my LPC in January 2012. I have already spent four years in legal training, but one of the many things that I have learnt of some importance is that lawyers do not get emotional.
Once I was aghast when a law student tweeted at a friend of mine, “Is there a difference between a law centre and a CAB?” However, it was a perfectly reasonable question. As members of law centres, we must confront this issue of what we’re (=law centres) doing that’s different from CABs. Marketing professionals must have an understanding of the awareness of any particular brand, for example the CAB or the law centre, before proceeding to develop a marketing strategy. I feel that law centres will need to develop a professional marketing strategy to raise their awareness amongst the community and investors. In my belief, whilst the CABx brand is very strong indeed, perhaps for historical reasons, the ‘Law Centre brand’ is virtually non-existent in comparison. I would be interested to know whether this is borne out by any hard data.
I have been thinking about how my law centre, especially my area of welfare benefits advice for disabled citizens like me, can benefit from alternative sources of funding, like the Big Lottery Fund, but this fundamentally depends on what pitch I should make. Is it that we are any more central to the communiy than the CAB? Or is it that we have more specialist qualified legal advisors than the CAB who can act as advocates? Are any generalisations possible or warranted? Furthermore, legal aid funding affects private practice stakeholders, as well as legal centres and CABs, and market forces affect all three. For all stakeholders to benefit the public the most, which is their ultimate aim after all, they need to have a clear idea of their values and which services they’re providing, so that all stakeholders can achieve optimal market and strategic positioning in a crowded, funding-challenged, market, perhaps.
Whatever – I personally think all legal practitioners should be given support, acknowledging that funds are limited. but funding bodies will have to prioritise unfortunately. In fact, a focus on funding may have the beneficial effect of providing better precision to all stakeholders in their strategy and core competences of their legal services, whatever sector they are in. However, fundamentally, I most agree with the observation that, at this late stage, arguing over a sense of entitlement is totally unhelpful. It is desperately important that we fight until the end for our common purpose in protecting legal aid. I would find it very hard to support law centres if they wished to campaign at the expense of CABx or other stakeholders, but they should think about how they differ from other stakeholders when applying for London Borough grants for community investment or structural upkeep, I feel.
Immediately this throws you into the territory that, as a lawyer to-be one day hopefully, I am getting emotional. Worse than that, I am getting political. Of course, central to the whole debate, is access-to-law and the rule of law. The Law Society and Bar Council provide that the legal aid cuts offend this fundamental right, and indeed many blogposts and the Guardianistas have thus far pressed home this vital point. However, an issue that my colleagues in the Law Centre I work at feel enormous frustration at the fact we are simply unable to get our message across.
We have, as citizens of society, to acknowledge that no political party will be in power forever, and it is not impossible that this Bill will become repealed in time or amended drastically. I feel that all employees in all legal institutions should not feel frightened in giving a voice to the opinions of citizens wishing to protect legal aid, and should be allowed to express such opinions in this organisational change. As part of my MBA, I studied in enormous detail critical success factors for relatively-rapid organisational change like this in the public sector, and by far the most important issues are trust and openness in the followers (including legal professionals) in ensuring the change goes smoothly. This is in addition to the demanding structural changes which are necessitated in this reform.
An issue is that the Legal Aid and Sentencing Bill, as proposed, could have a selectively detrimental effect on certain groups of society, including the disabled. Many of us have been prone to defend our own patch, and there is somewhat an element of ‘divide-and-rule’ in the debate which has ensued. Yet again, whilst I find repugnant that welfare benefits legal advice is being cut at the expense of some other fields of law, I feel that we all should be pulling in the same direction of protecting all areas of law (but especially for the socially disadvantaged.) In other words, lawyers and bloggers appear to the outside world to be not “in it together“, talking at cross-purposes, and becoming constituted by tribalistic vocal subgroups which are easy to ‘defeat’ as a whole. Secondly, I believe, that there is an element of where looking forward to the holiday has become more exciting than the holiday itself. I had a feeling of this in our opposition to the Health and Social Care Bill, where Labour loved opposing, but were completely incompetent in articulating arguments about competition, quality, value and cost in the NHS. Indeed, further, like perhaps #OccupyLSX, the opposition for the left has become more exciting than the substantive points of the opposition itself; I do not deny the inspiring success of @SoundOffJustice, and others. In fact, I met them at the DODS meeting in September, and was overawed personally about how much passion they had put into their campaign.
Thirdly, some elements of the ‘progressive left’, for example the Liberal Democrats, perhaps could have been more articulate about the effects of the legal aid policy on children, families, and wellbeing, which are now central planks of Liberal Democrat policy. Fourthly, whatever the reasons for it, the Legal Services Commission has been criticised, and there is a huge amount which could be done to improve the legal aid funding mess which has developed for a number of decades, including the last Labour governments? Whilst I do not feel the need to be perjorative in quoting the “most expensive service in Europe” statistic, which is actually untrue, we do need to address how best to develop legal aid funding. Fifthly, and this is an economic and quasi-political argument, I am a Keynesian and I do not agree with the ‘maxing out the credit card analogy’, but likewise, albeit as an utilitarian, I do believe we have to prioritise given the deficit which has come around in a large part through recapitalising the banks in #gfc1 (a policy which I am still uncertain about).
Finally, we need to get people interested in this subject in the media. I don’t mean the Guardianistas necessarily, otherwise we’re preaching to the converted. Whilst Sepp Blatter and racism, superinjunctions, anonymised injunctions and Andy Marr, and the BBC’s Children in Need are very important issues, we could do with much more focused coverage and debate of the Legal Aid and Sentencing Bill. I think this is essential, as I bet my life that this will obtain Royal Assent without any difficulty in due course.
Legal aid cuts: justice for all?
This morning, @paulwaugh chaired a #fringe meeting at #Lab11, as part of a series of non-partisan panel discussions to promote awareness of the new Legal Aid and Sentencing Bill. He started off the morning’ proceedings by introduing a @soundoffjustice video about the personal impact of #legalaid cuts to begin, #lab11 #fringe. The panel this morning consisted of Lucy Scott-Moncrieff, Vice President of the Law Society, Steve Hynes from the Legal Action Group (Justice For All Coalition; please listen to @charonqc’c podcast), and Andy Slaughter MP (Labour MP for Hammersmith and Fulham). The event was hosted by DODS, and chaired by Paul Waugh (Editor of PoliticsHome.com).
The video presented the wider impact on children and families, explaining that these cuts were hitting the most vulnerable people in society, at their most vulnerable time. The presentation, consisting of personal stories, emphasized that the legal aids are not a ‘cost saving’ at all, and may end up costing money in the long run.
Steve Hynes explained that the campaign is highly dependent on parliamentaries. The video demonstrates the decimation of civil law, leading to 50% of the service disappearing. This gives the impression that the legal aids are in fact ideologically-driven. Steve explained the need for the campaign to pick its ground. Jackson never wished to preside over the reforms with the cuts occurring. The report from LJ Jackson indeed is very comprehensive as reported by @TheLawyerKaty. Medical negligence is one such area. Steve Hynes thinks that amendments are possible in social welfare for law, involving the higher tribunals, in the House of Lords. The Tories took the view that the higher tribunals were considering conflicts of facts, but Steve argued passionately that this is clearly not the case. Steve feel that it must come into scope. Jim Sandbach succeeded in a Liberal Democrat amendment, getting social welfare back into scope.
Their Lordships apparently understand the need for disabled people to have rights. There must be independence in legal aid entitlement, and reforms of the LSC could mean that ministers make judicial reviews of their own departments, which is a nonsense. There should be no bias in decision-making, which will affect the credibility of both ‘correct’ and ‘incorrect’ decisions. The Coalition considers that it must consider ‘exceptional cases’, but the reality is that 50% of the family living aid firms will be getting out of the legal aid system – it is therefore fine to talk about ‘exceptional cases’, but it is essential to consider what sort of network there is to support legal aid. Labour when it came into power had a vision of the ‘community legal aid service’, which Steve considers to be a good vision, which the ‘Justice for all’ coalition would like to be part of – Steve will fight for concessions, and needs to campaign for the future. This is about maintaining the ‘rule of law’ and can only be achieved through a civil system.
Lucy Scott-Moncrieff considered that ‘there is a hearty need for a good practical response’, but there should be a consideration of the social justice ideals underlying the debate. The proposed cuts undermine the rule of law; no-one is above the law, and the flip side is that nobody is outside the law. The European Court of Human Rights suggest that rights are ‘practical and effective, not theoretical and illusory’. Litigating should be a last resort, as it is complicated and uncertain. Going to lawyers is a good step because they can litigate, and the opposite side take the case more seriously. Non-lawyers do talk about their frustration. Children and adults under the age of 24 (@SoundoffJustice) need help. Lucy remarked that it is a good idea to get this publication off the Law Society website (the Law Society has a very active section of its website devoted to legal aid funding). Lucy cited an example of ‘even a 17-year old would be unable to get support’, ‘a person whose identity was stolen and experienced debt problems’, and ‘a student who was unable to access special educational needs’. Lucy also considered welfare benefits through the example of a person who had been given disability living allowance and needed the welfare benefits to prevent eviction – he did not have the legal and medical knowledge to represent himself optimally.
Furthermore, the criminal justice system also currently relies upon lawyers who can obtain the proper evidence. The Coalition has a responsibility to ‘will the means’, in addition to the rights. The Jackson Reforms must be borne in mind. Legal aid is only a benefit to a very small sample of society. There are lots of people who rely on ‘conditional fee agreements’ – the loser pays the winner costs, and now the winner has pay for his or her own costs. The purpose of damages is to put the person back to the pre-contractual position, but the person is still going to have to pay fees. The “telephone gateway system” does not appear to make intuitive sense, because a person may have difficulty in using a telephone (e.g. a person in ‘community care cases’ in care homes). Where are people going to go if the CAB sytem? They’re going to go to MP surgeries, or councilors. Sound off for justice are continuing to fight.
Lord Willy Bach explained that Labour never threatened the criminal law system as a Labour minister. As a criminal lawyer, Willy feels – in what he has now formulated as ‘the justice gap‘ – that the abolition of criminal law, getting early advice, is ridiculous – as legal aid is meant to address early intervention, upholding defendants’ rights. A lawyer should be able to say whether cases are nonsense, or whether they should progress. It’s practical and moral nonsense. What is the point of ‘rule of law’? The Bill is going to come to the Lords, but the Lords will do their best to mitigate against the effects of poor legislation. Lord Bach urged the need to support the @Soundoffjustice campaign, especially through the use of cros-bench peers or LibDem peers.
Andy Slaughter MP had just done a fringe meeting for the ‘Young Fabians’. The Bill does not have a prescriptive agenda, and is a sense an extension of what has gone before. It might have a rouse to cut the prison population. The Jackson Reforms will cost the public money. The AA have voted against the Jackson reforms, and this is interesting as motorists constitute a large group of consumers. Restricting access to justice, and tipping the system away from private defendants appear to be unfortunate consequences of the Bill when enacted, according to Andy, therefore all the campaigns promoting awareness of the legal aid cuts are worth supporting.
Will opposites attract?
Lawyers in training often become bewildered as to how parts of their course ultimately gel together. This possibly contributes to their uncertainty in choosing which part of the law to specialise in. For example, how on earth does constitutional law, including the rule of law and human rights, relate to the different specialisms of law, such as immigration or housing? And what have they got to do with the big powerhouse corporate law firms, if anything?
A surprising fusion of these ingredients could hold the key to solving a different problem that has been vexing English and Welsh law for several decades, at least. That is, the issue of what to do about the provision of legal aid.
A community law centre, where the lawyer might examine a sensitive landlord-tenant dispute, may seem ‘worlds-apart’ from the work of a corporate lawyer, who may be advising on a multi-billion-pound, headline-grabbing deal. However, it is possible that these circles might mix more in future, due to the current circumstances.
Access to the law: back to the basic constitutional law
One of the very first things that law students focus on in their constitutional law courses is the ‘rule of law’. Indeed, the rule of law underpins the work of both ‘divisions’ of lawyers: the barristers and the solicitors.
In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the ‘rule of law’ in some (but not all) societies. Some of Raz’s principles include the fact that the courts should be accessible, i.e. no man should be denied justice, and that the principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
And what of the actual reality of today, in England and Wales?
“The Government strongly believes that access to justice is a hallmark of a civilised society. The proposals set out in this consultation paper [on the reform of legal aid] represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for the most serious cases in which legal advice or representation is justified.”
‘A brief history of legal aid’
Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949, with the aim of providing equality of access and the right to representation before the law. The scope of legal matters covered in 1949 was very tightly drawn.
However, today legal aid in England and Wales costs the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world. It is argued that the current scheme is available for a too wide a range of issues, including some which should not require any legal expertise to resolve. The provision of legal aid is now governed by the Access to Justice Act 1999 and supplementary legislation.
The possible effect of the proposed legal aid reforms
Many civil cases will no longer be eligible for legal aid, and fees paid in civil and family cases will be cut by 10% across the board, according to Ministry of Justice plans set out in the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, released in November 2010.
The UK government has estimated that, under the plans, £350m will be saved from the Ministry of Justice’s budget by 2014/15, if its proposals are implemented in full.
Ken Clarke QC MP, the Secretary for State for Justice and Lord Chancellor, has said in an interview that,
“I believe that the taxpayer should continue to provide legal aid to those who need it most and for serious issues. But the current system can encourage lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which may not always ensure the best result for those involved. The proposals I have outlined suggest clear tough choices to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in society and the efficient performance of the justice system.”
Reaction from the solicitors
The cut in legal aid may offend the rule of law. For example, the Law Society Chief Executive, Desmond Hudson, has warned that:
“If the government persists with these proposals, it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law. Legal aid clients are some of the most vulnerable in society and good legal representation where required is essential if they are to obtain justice. The Society will now consider the green paper in detail.”
The effect on the high street – the community law centres
‘Law Centres’ employ solicitors and case-workers who specialise in debt, discrimination, housing, employment, welfare benefit, community care, mental health law, and immigration and asylum law. Their initiatives are truly inspirational.
In an open letter dated October 2010, Julie Bishop, Director of the Law Centres Federation, provides a very interesting description of the impact that the financial recession – a possible driver in the need to cut costs in legal aid services – has had on the high street legal services:
“We serve 120,000 clients every year. The recession is hitting our clients hard. Already, the Employment Tribunals Service has recorded an increase from 10,800 to 19,000 in the number of cases related to unfair dismissal over the past year [October 2009-10]. ACAS has recorded a 13% increase in enquiries for conciliation services. Law Centres have experienced a 30% increase in clients assisted with employment and discrimination cases.”
An example of where the Law Centres have made a substantial impact is in Brent. Brent Community Law Centre stated that the cuts to legal aid will leave two options for those in poverty on Jobseeker’s Allowance: “a move from poverty to extreme poverty, or possession or eviction if they do not pay their rent.”
They cite that a single person living in a one-bed flat paying £180 per week will have to contribute £18 to the rent out of a weekly income of £65.45, leaving £47.45 for all other expenses including fuel. A separate (but linked issue) which compounds vulnerability is the proposed capping of housing benefit. It is estimated that this will cost claimants in Brent an average of £8,817,844 per year. This loss is to be shared among 1,988 claimants. If their rents are not reduced, they will have to pay £4,436 per household out of their own income. Currently, the Brent Law Centre is able to advise on this issue.
Brent Law Centre argues there will inevitably be far more possession cases in the county court because landlords, whether council or private, will bring court action for rent arrears. In addition, they believe that the impact on costs for other departments, such as social services and child protection need to be assessed.
Brent Law Centre, only through the goodwill of an army of unpaid volunteers, is currently able to provide legal advice and assistance for residents of Brent on a range of legal issues including education, employment, housing, immigration, mental health, public law and welfare benefits.
An unlikely solution?
It has not gone unnoticed that one of the effects of losing £350m from the existing £2.1bn budget may be to put corporate law firms under greater pressure to contribute to the provision of legal aid.
High profile pro-bono interventions by the household names in corporate law can become tied to big international events – such as helping out at the Sierra Leone war crimes tribunal (Weil Gotshal & Manges), or representing wounded soldiers in compensation cases against the Ministry of Defence (Hogan Lovells).
Nonetheless, doing pro bono has become attractive to graduates in an increasingly competitive job market, where law firms are keen to attract the best graduates, and graduates are keen to demonstrate their social awareness.
However, it is true that many newly-qualified graduates do contribute much time for free to the local community, often in very deprived areas, but find the work immensely fulfilling. This is despite the fact that their Managing Associates and Partners will not tolerate any compromises in their professional ‘day job’.
Who knows where this is heading?
The ideal outcome might be for a restructuring of legal aid services, such that the public and lawyers have a clear idea where the money is going to, and which enables fair access to legal services for the public. The crunch question inevitably becomes: “where this money is coming from, if it’s not the taxpayer?”
Brent Law Centre is just a single example of where professional lawyers give their skills free-of-charge for the benefit of the community, but it would be tragic to see a situation where lawyers cannot even do this because of the ‘system’.
It might be, even, that the corporate lawyers have a crucial part to play for the benefit of society, in contributing towards the maintenance of legal aid in the high street law.
