Scotland & N. Ireland, in… United Kingdom, out… Fair?

The fundamental basis of the referendum of the 23rd June 2016, was both misconceived and unsound. The result undermines the powers devolved to Scotland and Northern Ireland by the United Kingdom, and their ability to exercise those powers.

Schedule 5 of the Scotland Act (1998) defines those policy areas which are “reserved” to the UK Parliament, leaving other matters devolved to the Scottish Parliament.

The Northern Ireland Act (1998) gives the Northern Ireland Assembly control over “transferred” matters. Schedules 2 & 3 of the Northern Ireland Act specify matters that are “excepted” and “reserved” respectively, both categories comprising matters reserved to the UK Parliament. Any matters not included in Schedules 2 & 3 are devolved.

Consequently matters devolved to Scotland and Northern Ireland include, but are not limited to:

  • Health and Social Services;
  • Education;
  • Agriculture;
  • Social Security;
  • Housing;
  • Economic Development;
  • Local Government;
  • Environmental Issues;
  • Planning;
  • Transport;
  • Culture and Sport;
  • Justice and Policing.

The United Kingdom retains responsibility for “reserved” and “excepted” matters, which includes jurisdiction over administrative and constitutional matters, and therefore includes the EU referendum.

In the EU referendum of the 23rd June 2016, Scotland and Northern Ireland both overwhelmingly voted to remain in the European Union (Scotland 62%; Northern Ireland 55.8%). Despite this, both Scotland and Northern Ireland are to follow the result of the UK referendum, and leave the European Union.

There is a fundamental conflict between the extensive powers devolved to Scotland and Northern Ireland, and the decision forced on them by the United Kingdom as a whole, which renders their ejection from the European Union unfair, unconstitutional and undemocratic. The result undermines the powers given to those countries, the entire basis of the Scotland and Northern Ireland Acts, and those countries’ abilities to enact the policy devolved to them by the United Kingdom.

The result of the referendum of the 23rd June 2016 is therefore unsound, and should be disregarded, and a second referendum should instead be held, which acknowledges the significant self-governance of these two countries, and therefore their right to decide their membership of the European Union, and therefore their own future.

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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…

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Thanks for reading.

Dean

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.

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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.
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