Justice Without Lawyers

Justice without lawyers. How does that work then? Probably about as well as a healthcare system without home grown nurses.

It is widely considered that one of the main drivers of the enormous NHS trust deficits is Government cuts to training places. All very well in theory, but at 1 o’clock in the morning when a busy trauma department is filling up with patients and needs staff, what are they supposed to do? Turn patients away? Of course not. Their only alternative is to turn to agency staff, a much more expensive option, but often the only option. Worse still, it’s not like the government couldn’t have seen this coming.

Returning to the law, the Government have been reducing the general public’s access to legal services for going on three years now, and one of their wheezes for this year, has been virtualisation of the courts and court process. In other words, move the litigation process online, reduce the staffing bill, and close the courts.

So, having created an advice vacuum with their policies of the last 2-3 years the Government is talking about Online Dispute Resolution (ODR) as if it is a panacea to cure the very vacuum they have created, and yet it obviously cannot possibly be any such thing. What it will actually do is replace the system we have now; people using physical court buildings and staff to process and adjudicate their disputes, with a virtual place and process. It will not, and cannot, replace legal advice. To suggest otherwise, is analogous to suggesting that if you close down hospitals and take doctors out of the equation, you can replace them with a self-diagnosis and prescription website. Utter, utter, tripe.

I left partnership in a firm to set up my own practice 6 months ago, which is aimed at assisting small businesses and consumers with contractual disputes at low fixed fees, and which was prompted by another government policy, their doubling of the small claims limit 30 months ago to £10,000. The carnage I have seen, and helped people through, in the last 6 months has to be seen to be believed:

– all caused by the same mindset that has produced this announcement- The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers (The Right Hon. The Lord Thomas Of Cwmgiedd Lord Chief Justice Of England And Wales, 25th September 2015) – an absence of lawyers. Had the small claims limit not been raised, many of those people could have afforded lawyers, because if successful, they could have recovered the money they were spending on legal fees.

In the last month, I was hired by a client less than a month before her trial, to try to help her. She was involved in an acrimonious contractual dispute with a business lender. It was only at that point that she realised that she was in trouble. She had a very good argument that the case, which was run (badly) by professional lawyers against her, was unfounded. Unfortunately, because she had only a limited understanding of the law, she was blind to a critical development in the case which destroyed entirely her chances of defending the case, only a couple of months after she started. Had she been legally trained, she would have seen it immediately. Even the judge at the final hearing told her that theoretically, she had a good argument, but that she had lost the chance to capitalise upon it. Had she hired a lawyer a year ago, when the dispute first began, she may have avoided a substantial judgement against her which was awarded a week ago.

Her position would have been no different had the court been online.

The Government’s attitude to litigation is that it is very much an optional activity”. I doubt that my client felt that she had much option when she was trying, and failing, to save her business without the help she needed, and could not afford.

And yet the government persists in pursuing policies time and again which withdraw legal help from all but those with the money to afford it. Even GPs have reported an increasing number of consultations with patients who have unresolved legal needs, which are adversely affecting their life, their mood and therefore their health.

Perhaps perversely, this all reminds me of a brilliant scene in Blackadder 4:

Blackadder – Would this brilliant plan involve us climbing over the top of the trenches and walking very slowly towards the enemy?”
Darling – How did you know that, Blackadder? It’s classified information.
Blackadder – It’s the same plan that we used last time, sir. And the seventeen times before that.
Melchett – E-e-exactly! And that’s what is so brilliant about it. It will catch them off-guard. Doing exactly what we have done eighteen times before will be the last thing they’ll expect us to do this time”.

And there is the problem. They keep repeating the same behaviour, expecting different results:

This is particularly so when the Government have already admitted that they pushed many of these changes through without any, or any effective, consultation.

Most of their reforms so far have had the cumulative effect of removing access to legal representation, advice and assistance. Taking lawyers away from people has caused this – saying that they will have to get used to it is not going to fix the problem, and is only going to make it worse.

At the start of this year, 87% of lawyers thought that legal representation was no longer a right. The LCJ appears to have just given that view his blessing!

This is the clearest confirmation yet that the Government does not WANT people to have legal representation. In fact, it mirrors their stance on Judicial Review, where restricting the scope of JR would reduce the likelihood of challenge to Government policy.

For the last six years, the Government has been behaving like a cowardly schoolyard bully, trying to ensure that the fight is unfair, and is rigged in their favour.

ODR cannot replace the need for legal representation, and neither can any “virtual” court system the Government intends to introduce. Representation, advice and legal assistance will still be needed, whatever system the Government puts online, because, just as in medicine, people need the help of experts in their field. They cannot solve complex legal problems by navigating a few decision trees online, and furthermore, regardless of the views of the LCJ, unrepresented litigants taking action against a large business (who will very likely still be legally represented), or vice versa, will still be at a disadvantage to the represented party, as in my client’s case.

As the Guardian says in their article above What the figures do not convey is the sheer human misery of being unable to get legal advice”.

In May, I wrote an article entitled “The Sick Society”, in which I made a number of predictions as to the likely path of society if this Government’s judicial policy does not change. None of those predictions have changed, but there is a growing wealth of evidence that they are already happening. They are:

• with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
• an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
• an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
• a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
• a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
• with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

Parliament’s own report into the impact of these changes, the “Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012” states:

“80. Witnesses observed that demand for [legal] services was going up, partly as a result of the legal aid reforms but also because of other reasons such as changes in the benefits system and immigration rules, pressure on housing and rising use of zero hours contracts.[138]”

This isn’t just my opinion. It is happening.

Now.

Justice is, and always has been, at the core of our society. So instead of saying that people will have to get used to life without lawyers, the Government should be finding a way to restore contact between the general public and the legal services they once had, but have, under the last two Governments, lost.

It is truly a sad reflection of our leadership, that all of this is happening in the year in which falls the 800th anniversary of the signing of the Magna Carta, but this fundamental affront to our proud legal heritage also highlights the clear agenda of the incumbents; that justice should no longer be defined as “Just behaviour or treatment: a concern for justice, peace, and genuine respect for people” [Oxford Online Dictionary], but as a commodity to be bought only by those with sufficient means to afford it.

Everyone else will have to DIY.

Meanwhile, I have to get back to work. My hot water boiler has packed up, and I’m sure that with a £5 toolkit and a modicum of common sense, I can replace it and have the taps running hot by tea time…

If you have enjoyed this article, please feel free to share.

Thanks for reading.

Dean

Advertisements

Compulsory Community Service for Lawyers

Yesterday, I posted a hypothetical article exploring what it would be like if the members of a profession other than the legal profession were expected to work for free.

This was prompted by a think tank study suggesting that lawyers should be made to work for free.

Regardless of the reasons given in the report (“reputational repair”…), the clear drive for this is to fill the huge advice desert created by the Government’s legal changes over the past three years, in particular, LASPO (the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). Indeed the day after the report was published, Michael Gove announced that the Government will not backtrack on their legal aid changes (and why should they – the “fix” was announced the day before).

The proposal, when you look into it in a bit more depth, however, is truly startling in the liberties it takes with the rights of the British professional.

These plans, if brought to fruition, will result in lawyers working for free for up to 10% of their working year. The proposal is that this will be compulsory.

The only other societal situation in which this occurs, is in “Community Payback” (the current name for what we used to know as Community Service).

Community Payback is a compulsory work order given to convicted criminals as an alternative to custodial sentences.

According to Gov.UK, Community Payback sentences can be given for periods of 40 to 300 hours, depending upon the seriousness of the crime. The average of 40 and 300, is 170 hours.

170 hours is 4.25 working weeks.

10% of a lawyer’s working year, is 4.8 weeks (10% of 48 weeks, having deducted 4 weeks holiday).

So to summarise, the Government’s latest proposal to fill the advice vacuum left by their hugely destructive legal changes, is that lawyers should do more compulsory unpaid work in a year than criminals convicted of offences such as damaging property, benefit fraud and assault.

Only, unlike criminals, lawyers should have to do this every year of their career.

Sentenced, but not tried or convicted.

I can’t wait to see the legal justification for this.

If you have enjoyed this article, please share. Thank you.

Accountants to be forced to work for free?

A Westminster-based think tank today released a report stating that accountants should be made to work for free.

The think tank (“Public Thingy”), has released a report, which, amongst other things, argues that the public has lost trust in their professionals, and in particular, accountants. The report states that “A variety of indices suggest declining levels of trust in the UK”….”Collapse of public trust in institutions and professionals should particularly concern us, not least because in many ways we are a service nation”.

It goes on to say that those working in the accounting profession, are far more trusted than bankers, politicians and journalists. However, these levels of trust cannot be taken for granted and neither are they necessarily indicative of clear virtue in practice”.

So, accountants score more highly than politicians, bankers and journalists, but if the stats don’t support your case, rationalisation is your best friend!

The report goes on, “the underlying problem for accounting practice is an increasing loss of purpose for the professions as a whole and a loss of vocation for individual professionals”“The accounting profession has seen an erosion of its sense of wider social purpose and vocation. Accountants are still more trusted that politicians, bankers and journalists” (in case you’d forgotten). 

The report holds the profession responsible for the erosion of access to good accounting practice for all.
The 36 page report however blatantly ignores the fact that the Government has imposed a withering hailstorm of attrition on the accounting sector in the last three years, including but not limited to:
  1. Reduction, verging on partial elimination, of all State sponsored accounting services, meaning that businesses who need State assistance with their accounting, are now faced with the choice of doing it themselves and getting it wrong, or paying money they don’t have for a service that used to be free, or subsidised;
  2. A bewildering assault on private accounting services, aimed at driving down the cost of accounting services to low level fixed fees, the results of which can only be a reduction in service levels and an increased level of professional negligence.
Given that the result of both 1. and 2. are that accountancy practices, particularly smaller ones, are less able to provide quality accounting services for the fees they can now legally charge, it is difficult to understand the conclusion of Public Thingy’s report that, having had their fees summarily suppressed by legislation, accountants are to be expected to carry out 10% of their work for free.
To draw an analogy, according to this report, politicians are still held in lower regard than accountants. As everyone knows, David Cameron stated that he believed the award of a 10% payrise to MP’s was “wrong”, which would seem to fall in line with Public Thingy’s expectations of social conscience in the professions. Of course despite denouncing the award, he didn’t manage to actually reject it, but Mr Cameron did nevertheless stand firm, and through a Downing Street source, said We’re writing a letter to Ipsa to reiterate we stand by the detailed submission we had already made to them last year saying we think this rise is wrong.”
So Mr Cameron “wrote a letter”. That’s that sorted.
All’s well, honour is satisfied, and so is the bank manager.
So, politicians have done the decent thing. What are accountants going to do to restore their tarnished image?
The fact that their image has been irrepairably damaged by Government action which has resulted in the depression of the industry’s service levels from limousine to Lada, is not the Government’s problem.
Public Thingy have the solution: get them to work for free. They should donate 10% of their time free, to fill the gap left by the Government, whose meddling has decimated the industry, and the sterling and ubiquitous service it used to provide. And that’s after having drastically reduced the level of fees they can charge for the work they do.
This all sounds like either a warped nightmare, or a very bad joke. Could the Government really wreak havoc on the accountancy sector, and could they really make accountants work for free?
Of course they couldn’t.
Of course they wouldn’t.
And they wouldn’t make plumbers work for free, or printers, or roofers, or shopkeepers.
And ResPublica (I make no apologies for the truly appalling pun), the Westminster think tank, have provided the weight Gove needs to begin moving such a proposal forward.
Why is it that this Government manifests itself as a self-styled paladin of commercial enterprise, and yet has time after time proven itself committed to throttling the life out of the legal industry, clearly secure in the belief that the law can take everything thrown at it and still continue delivering 110%?
The Law is the foundation of civilized society. As anyone who has played Jenga will know, continuation brings a certainty of collapse.
Still, at least accountants are safe.
For now.
If you have enjoyed this article, please share. Thank you.

 

 

Err, TWO non-lawyer Lord Chancellors?

Radio silence for the last month, I know, but life has overtaken me, and, if I’m honest, all has gone quiet (well, relatively so) on the MOJ front.

Not really surprising since we have just had an election however, and all the new incumbents have of course retired to the “Plotting Room” to hack out their battle plans.

Did I say “Plotting Room”?

I meant “Cabinet Room”.

It’s now old news that Cameron has appointed Michael Gove as Lord Chancellor. It’s also old news that Mr Gove is the second LC appointed by Mr Cameron (in a row) to be missing a professional legal qualification. To be fair to Mr Gove, he hasn’t had a chance to make his presence felt yet, and it’s only fair that we give him that chance. I’m talking of course about his role as LC. Obviously he’s had his fair share of headlines to date:

  1. the National Association of Head Teachers,
  2. the Association of Teachers and Lecturers,
  3. the National Union of Teachers, and
  4. the National Association of Schoolmasters Union of Women Teachers,

…due to his education policies. Tim Gallagher, who proposed the motion for the NAHT, said: “This motion’s intention is to send the strongest message possible to this government that many of their education policies are failing our children, their parents and the very fabric of our school communities.” His education policies were considered by highly experienced Head Teachers as “devoid of meaningful consultation” and “lacking in understanding”.

Interestingly, Chris Grayling, his predecessor as Lord Chancellor, was accused by the legal profession of skimping on his consultations and of having no understanding of his role – the more observant readers may have spotted a theme developing at this point (as will the less observant).

But, the purpose of this brief missive (for those used to my blogs who are currently uncorking the bottled oxygen, I promise, this one is brief) is not to discuss Mr Gove’s record at the MOJ. Time enough for that later.

The purpose of this article is simply to float a question, which I am surprised I have not seen raised since the election.

What possible reason could there be for Cameron appointing two non-lawyer Lord Chancellors?

The first? Possibly coincidence, on a good day, if you were feeling in a generous mood, downhill, with a following wind (and possibly afterburners) etc, etc.

The second? Coincidence again? Not a chance.

The only rational explanation for appointing two non-lawyers to the position of Lord Chancellor, having already run the five year gauntlet of beatings from the judiciary, can only be to ensure that justice does not get in the way of cost cutting.

After all, if you were demolishing a house, you wouldn’t use a builder. Would you.

THE SICK SOCIETY

In three days’ time, we have a general election. So far, we have heard a great deal from the parties about who will be allying with who after the election, or not, but little about the detail of their promised policies. Not that promises mean much anymore, after the Liberal Democrats’ now famous u turn on their promise to oppose increases in tuition fees.

But their policies are the reason we turn out every four or five years to cast our vote, and after the socio-economic firestorm of the last five years, many people feel that reparation is required, and the parties’ policies should reflect that.

No right-minded voter would vote on the basis of one single issue. However there are issues whose effects percolate throughout the entire fabric of society. Justice is one of them.

In the film, Devil’s Advocate, after Al Pacino has just told Keanu Reeves that he is his father (oh, and Satan – who’d have thought…), Keanu Reeves asks him why he chose to manifest himself on Earth as a lawyer:

Keanu Reeves (Kevin Lomax); “Why the law?”
Al Pacino (John Milton/Satan); “Because the law, my boy, puts us into everything”.

The story is thankfully fiction, but the point above is not only a fact, but a blindingly obvious one at that. Which makes it all the more extraordinary that a seemingly intelligent group of politicians can have inflicted so much damage on the legal system of England and Wales.

Over the last five years, the Conservatives have taken it upon themselves to mount a sustained and vigorous attack on the rights of the common man. Among their more well-known policies, they have:

  • Introduced the “Bedroom Tax”, and Benefits sanctions for the most minor of defaults; both have resulted not only in widespread hardship, but even in tragedy;
  • Withdrawn legal aid for both family and criminal work, and have left convicted defendants who have pleaded not guilty facing payment of high fees, leading many to believe that many accused parties may prefer to plead guilty rather than roll the dice at trial;
  • Stated their intention of reducing the costs of civil litigation, and did so, and then raised court fees by an average of 600%. How raising court fees is supposed to be compatible with the Government’s identified issue that “The costs of civil litigation are too high, and are fuelled by no win no fee conditional fee agreements (CFAs)”, is anyone’s guess, and is just another illustration of the undisguised hypocrisy and contempt which has characterised much of the policy of the last five years.
  • Increased tribunal fees resulting in a reduction in tribunal applications of approximately 70%. The only logical result from this is that employees who have been unfairly dismissed are not taking action because they cannot afford the fees.
  • Taken action to restrict access to Judicial Review, one of the most powerful tools available to the people when seeking to hold the Government to account.

As a result of the above changes, one survey states that people are now more concerned about access to justice than access to free healthcare. This point is reinforced by the fact that GPs are reporting that they are seeing increasing numbers of patients with unresolved legal needs during their consultations.

It is not only the public, but Judges who are becoming more and more concerned at this withdrawal of justice from the masses. Sir Alan Moses recently said, “No one seems to care about the plight of those who have neither the ability to protect themselves in a legal sense and cannot afford a lawyer”. And for those brave people who do try to present their own case, the courts cannot cope.

An open letter was recently written by more than a hundred Peers, lawyers and doctors, requiring that the new Government, whatever creed it may be, takes steps to restore justice to the people.

This plea has become lost among the headlines, and was no doubt viewed by some in Whitehall as just another whining and self-serving attempt at self-promotion by those who submitted it.

I believe it is a genuine appeal to the next incumbents to fight a cancer in our society, which was born out of, and is growing due to, this Government’s policy. I further believe that there are serious long term consequences looming if some of the changes that have been introduced in the law are not reversed.

Cameron came out just over a year ago and finally admitted that he was not imposing austerity just in order to repair the economy, but because it was the way he believed society should stay.  He said that the Country needs “to do more with less”. If these policies continue, many people, almost all of them less wealthy and more vulnerable members of our society, will get less for less, not more for less.

The Tories talk about rising employment figures, but the reality is, with checks and balances on employers reduced, (see this article for a summary) zero hours contracts and under employment more prevalent, a sick work force with a growing reliance on food banks, and this can only get worse.

From my long years of experience as a personal injury lawyer who has worked on employers’ and public liability claims, I know that, whilst the large majority of employers may well treat their employees fairly, many don’t, especially the lower paid employees. The above changes are already making that worse.

Add to that restrictions on the quality of representation already being seen due to the introduction of fixed legal fees for injury claims, the withdrawal of legal aid for most family work and its reduction in criminal work, and the doubling of the Small Claims Limit in April 2013, and it is apparent that justice is no longer a foregone conclusion in most adversarial cases, particularly in low value disputes. Even the Master of the Rolls believes this to be the case.

Women and children are staying in violent relationships because they cannot afford to take legal action.

And finally, we could shortly have innocent people pleading guilty, simply because they cannot afford the consequences of losing, whether they are innocent or not.

Cameron heralded his 2010 campaign with his flagship policy – the “Big Society”. What he has achieved in the last five years is no Big Society, but a “Sick Society”, where success replaces justice as a commodity to be bought by those with the means to afford it. Meanwhile for those who cannot, in the longer term, the consequences are likely to be;

  • with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
  • an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
  • an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
  • a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
  • a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
  • with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

None of this is likely to have a beneficial effect upon the country’s GDP.

All of us, regardless of our position in society, could find ourselves down on our luck. A divorce, a redundancy, a repossession, a County Court Judgement could be all that separates us from those looking to the State for support.

If we were to do so today, however substantial our contribution to the exchequer over the years, we are unlikely to meet with any sympathy. In fact, Mr Cameron recently summarised the Government’s position succinctly, when he suggested that those requesting financial help to bury a dead war hero should seek a “charitable solution.

At some stage, if not in the next Parliament, someone with the power and authority to make a difference, will realise that, in the words of Al Pacino, “the law, my boy, puts us into everything”. Hopefully they will then be able to begin undoing some of the damage that the Conservatives have done over the last 5 years.

I just hope it doesn’t take too long for the penny to drop.

If you have enjoyed this article, please share. Thank you.

big-society-slogan1