The new Access to Justice Commission: Update 8 (The Society of Labour Lawyers)

On 22nd March 2016 we received evidence from the Society of Labour Lawyers.  They submitted short written comments under four different headings – Family, The Junior Bar, Crime and Civil –  which they supplemented in their oral presentation.  They then answered questions posed by members of the Commission.  They said they would be making a much fuller written submission to us in due course.

The summary of the evidence they gave has been set out under the four different headings, for the convenience of readers.

The Society was represented by:

  • Catherine Atkinson (Secretary), a barrister with a predominantly civil practice [CA];
  • Naomi Angell, a consultant at a solicitors’ firm and recent co-chair of the Society’s Family Committee [NA];
  • Hamer Gomershall, the Chair of Young Labour Lawyers, who is a barrister specialising in family cases [HG];
  • Raj Chada, a criminal lawyer who is a partner in one of the largest legal aid practices in the country. He was legal aid lawyer of the law in 2012, and has wide practical experience outside the justice field [RC];
  • Stephen Hockman QC, a former Chair of the Society and former Chair of the Br Council of England and Wales [SH].

 

A.   FAMILY

Written Submission

Mediation

The removal of legal aid from private family cases was designed to result in an increase in mediation. This was understandably regarded as a better way of resolving family breakdown and disputes where possible.

However, the policy has back-fired dramatically. Take up of mediation has plummeted since LASPO because the solicitors who were previously providing the legal advice and sign-posted clients towards mediation are no longer able to offer such a service.

With access to legal advice thwarted, the Government is instead spending money on far less effective methods of attempting to sign post people into mediation by websites and public education campaigns.

Although there is a necessity to have a MIAMS[1] certificate, before being able to make a private law family application to court, this is often far too late in the process.

Legal advice is also needed later in the mediation process to give the maximum chance of success of mediated resolution of disputed issues in relationship breakdown by parties being confident, informed and empowered throughout the mediation process.

The Government should reinstate publically funded legal advice under the legal help scheme which will have the effect of signposting more people into mediation. This would reduce recourse and pressure on the court system. The Government should also reinstate legal aid for representation in particularly sensitive areas of private family law, such as where primary care of a child may be transferred.

Litigants in Person (LIP)

The rise in the number of LIPs is due to the removal from of a majority of private law family cases from legal aid. The impact on the courts and family justice system is immense, with the court system clogged and an unfair burden on judges and magistrates to attempt a fair trial.

Cross-examination and submissions are less likely to be succinct, focused and effective and has resulted in applicants in DV cases being cross examined by unrepresented alleged perpetrators. In cases which are often innately emotive, this can lead to unnecessarily stressful environments for all parties.

The cuts to legal aid in this area inevitably lead to inefficiencies in the system later down the line. Where there are LIPs it is far less likely that the issues will have been narrowed before the hearing or a negotiated settlement reached increasing the number of lengthy and contested hearings.

 Oral presentation

NA:

The two points we have raised are causing huge difficulties in family law.   They are closely related.  When legal aid was removed from scope for most private law family cases, this was the largest of all the cuts made by LASPO.  They have had a dramatic impact on the family court system.  Either both parties are LIPs, which imposes a great burden on the judges, or one side is represented and the other is not, and here the clear inequality of arms creates a real risk of injustice and also a risk that any agreed solution achieved in court will fail to “stick”.

If LIPs are involved, there is less likelihood that they will narrow the issues and their submissions are less likely to be succinct.  There is therefore an increase in lengthy contested cases which are clogging up the court system, at a time when cuts in court resources are already taking place.   Furthermore, victims of sexual violence are now being cross-examined by their alleged perpetrators acting in person, which is clearly unfair.

LIPs are likely to feel frustrated and alienated from the process.  This may create a short term risk in terms of safeguarding risks for the children, or they may take things into their own hands, with the obvious risk of unwanted consequences.

The long term effects on society are likely to become increasingly apparent in mental health statistics and criminal justice statistics, and the poor outcomes for the family are likely to be repeated in future generations.

Family cases are very personal and particularly emotive.  They may involve people who ae vulnerable, learning disabled, people for whom English is not their first language, or people with low intelligence or addiction issues.

Children are often not represented separately in private law children’s cases.  If LIPs are involved, the child’s voice is not being effectively heard, although judges are aware of the necessity of this.

There are cases in which legal aid may be available for one area of the case but not for others, which makes it difficult for the litigant to provide any effective representation.  There was a recent case involving a contested application for an interim care order.  It was alleged that the father had strangled the child and committed domestic violence against the mother.  Legal aid only covered the application for an interim care order, but not for the application for a non-molestation order which was dealt with at the same hearing.  The father brought to court a report by a psychologist which stated he had a very low IQ.  He was unable to convey his evidence effectively to the court or indeed to understand what he had to convey.

The position over mediation is extremely bad.  It is rightly recognized as a better way of resolving family breakdowns wherever possible, and public funds were earmarked for an increase in mediation following LASPO.   In the event the take-up of mediation plummeted.   The Government had failed to acknowledge what the problems would be and had failed to listen to those of us who gave evidence to them.   Before LASPO most people were being signposted by their solicitors through legal help towards mediation early on in a relationship breakdown.  This is really important.  Now there are quite expensive websites signposting people towards mediation through public legal education campaigns. There is also a need for legal aid for mediation if an early solution cannot be found, in order to achieve a solution which will “stick”.

The solution is to reinstate publicly funded legal help for base level legal advice at an early stage which would steer more people towards early mediation.  If the case proceeds to contested litigation, they will have better information on how to conduct it.

Legal aid should be restored for quite a number of categories of cases.  Examples include:

Cases in which the primary care of a child is in issue and care may be transferred;

Cases where there is local authority involvement in private law children proceedings;

Cases where representation of both parties is necessary for a just resolution: cases involving particularly vulnerable people, for instance;

Cases involving an application to remove a child from the jurisdiction.

 

Questioned by Commissioners

Restoration of legal help in family cases & categories of family cases to be brought back within scope

Legal help for initial advice should be restored in all family cases.  Everyone needs general legal advice at the start, with a signpost to early mediation on both financial remedies and children’s issues.

We have identified particular categories of case which should be restored to scope for legal aid in family cases, but there are others as well.  I always look at the cost involved in the long term implications of what is happening at the moment, which is disastrous at every level if legal representation is not available.

There are some areas where it is clear that legal aid should be restored, for example, cases involving the possible transfer of primary care, where there is now a clear risk of injustice; and cases where a court requests local authority involvement, with the possibility of care proceedings being brought at a later stage.

Vulnerable people receive legal aid on an application for interim care, but not on a later application for the revocation of a care order.

In contact disputes, legal aid is not needed if the dispute is about the quantum of contact, or whether contact should take place on Saturday or Sunday, but it is certainly needed if contact is being resisted or contested, and there is resistance to the idea that there should be contact at all.

A convenient test might be: Is an allegation so serious that it would be unjust not to provide legal representation to defend it?

There is now evidence that more people are making allegations of domestic violence simply to be granted legal aid at the next stage.

There is a need to bring more categories of family cases back within scope.

 Cross-examination by alleged perpetrator of sexual assault

There was a case in the High Court where the judge said that it would be such an infringement of the litigant’s Convention rights if a lawyer was not present that he would order HMCTS to pay the cost of legal representation if the LAA still refused to do so.  He was later overruled, but he focused attention on a real problem.  In that case the LAA granted legal aid under pressure.  We need a similar response in all such case, as is already the case in crime.  This should be a simple model, without any need to fill in complicated forms.

I think it is also now recognized by the judiciary that there are other areas of law in which legal representation is essential if justice is to be done.  In the Court of Protection, the other day a judge refused to hear applications concerned with the detention of people without capacity unless legal representation was available to them.  At High Court level pro bono representation is stepping into the breach, but this seems very wrong to me.  As it is not often available in lower courts, it is an unfair way to proceed.

 

B. THE JUNIOR BAR

Written Submission

Exceptional Circumstances Legal Aid

One of the safeguards envisaged by LASPO was the provision of ‘exceptional circumstances’ legal aid, to be distributed at the discretion of the Legal Aid agency to avoid a breach of convention rights.

This has proved a mere ‘fig leaf’. For example, in the first year only nine children cases were deemed sufficiently exceptional.  It has been the topic of judicial ‘stand offs’ and would be a straight forward area where expanded application and funding would have a significant impact in the most extreme cases.

Scope and organisation of Pro Bono Work

Legal advice centres are experiencing unprecedented demands for their services, particularly in the areas of housing and family law. Our members who volunteer in advice centres report that while the centre would never turn away an enquirer without offering advice on other agencies better placed to offer help, it was known that the capacity and scope of the other agencies were also limited.  It may be that the enquirer was therefore stuck in a ‘referral loop’ of constantly being sign-posted to other services which did not themselves have the capacity to cope.

While Legal Aid covers most legal casework in an eligible case, it is often the case that to achieve a successful outcome, extra-legal work would be necessary.  For example, in housing-possession cases, many clients who were in arrears came to be so as a result of not claiming benefit payments they were entitled to. To successfully assist such clients, it would therefore be necessary to work with the client to ‘sort out’ their benefits situation.  While assisting the client with their benefits would, in reality, often be more conducive to a positive outcome than extensive legal research and drafting, this work is specifically excluded from scope by Part II, Schedule 1 of LASPO.  This is a straight forward reform which would make a real difference to voluntary legal providers.

Court under-resourcing

Three elements have created a ‘perfect storm’ of pressure on the courts and tribunal system: (i) the increase in the number of litigants in person (demanding more time and follow-up work by the court) timed with (ii) cuts to the number of administrators and clerks working within the courts service; and (iii) the closures and further proposed closures of courts.

The consequences are frustrating for court users.  Firstly, there are increasingly long waits outside court – it is not unusual for a matter listed for 10am to be called in finally at 16:30. (This is particularly problematic where the parties are distressed, vulnerable or have young children waiting with them at court).  The lack of availability of court time also leads to unacceptable delay within proceedings.  One example involved a transfer of tenancy application in a domestic abuse/financial remedies case at Edmonton County Court waiting seven and half months for a listing of the final hearing (time estimate just half a day).  With higher volumes of cases at fewer court centres, the building itself becomes under pressure. It is not unusual to have to discuss intimate and distressing details with a client (perhaps on the proposed removal of their children, on allegations of sexual abuse, or on personal financial details) sat on the floor of a corridor or in a stairwell because all conference rooms are full.

Oral presentation

HG:

The arrangements for exceptional case funding [ECF] were written into section 10(3) of LASPO when these dramatic cuts came into force.  The idea was to give the LAA a discretion over an available pot of public money in cases where vulnerable people’s Article 6 or Article 8 rights would be prejudiced.  The Government envisaged that there would be 7,000-10,000 cases a year.

In the first year (which ended in March 2014) ECF was granted in only nine cases involving children.  As a result, parents have been struggling to represent themselves in family cases.

We recognize that we can’t hope for large sums of money to be restored to the legal aid system, so we would encourage you to look at expanding ECF.  Look at the cases in the last two years in which judges have been playing a key role in identifying where it may be needed.

There have been cases where a mother has been cross-examined in private law children proceedings by the man she said had raped her   In another case, where the father had pro bono representation a High Court judge suggested that the Courts Service should pay for his representation if legal aid was not available, because he could not try the case justly if he was not represented, and judges would be compromised if they had to take an active role in conducting the questioning of a particular party.

As Chair of Young Labour Lawyers, I know of the large amount of pro bono work which particularly junior barristers and solicitors are now doing.  It forms part of our career development and in that sense it is very useful, as we can gain experience from it.  We can contribute a lot, but we have to be careful not to stray outside our field of expertise.   I am concerned about the idea that every lawyer can dabble in every area of law, regardless of their specialism.   Some areas of law need specialist lawyers.   Volunteers at a Law Centre may have cases involving allegations of domestic violence and the need to apply for an emergency injunction the very next day.   Legal aid is now available for most, but not all, domestic violence cases, but not everybody knows this.   There is a need for some kind of organizational structure which identifies which clients are eligible, where they should be referred to, and when not to do pro bono work for them.

The Court of Appeal recently directed the need for another look at the rule that legal aid should not be available if there had been no incident of domestic violence in the last 24 months.

Finally, we are hearing about the need to modernize and invest in technology, to cut court costs and help to improve efficiency, but how will this work in family law?  There are a lot of LIPs.   Will they have ready access to the Internet?  There would be a need for Wi-Fi, but no family court in the London area possesses it.

Questioned by Commissioners

On-line courts

Anything that makes good use of technology is a good idea.  It is just a question of practicalities.  There must be safeguarding measures for different litigants: many are vulnerable people.

ECF

Recently judges have been saying that various situation are incompatible with the Convention.  Ultimately it is an argument about Convention rights, but who is going to make that argument to the LAA?

There are cases where the voice of the child needs to be heard.  There has recently been an increase in ECF grants in children cases.  We don’t have the latest figures but Richard Miller of the Law Society says that it is not a vast increase.  It is still massively cumbersome to fill in the forms.  If a pro bono lawyer is involved in the Court of Appeal when the judge says that ECF legal aid should be available, then he/she can complete the form.

Only the other day in a magistrates’ court the local authority was asked to attend, because the parties had been screaming at each other.  It was the fourth hearing, and the magistrates and their legal adviser all considered that a lawyer was needed.  The additional cost of all these hearings was bonkers.

We are trying to make the best of a very difficult situation in the reforms we suggest, because we can’t see any possibility of an increase in funding big enough to restore all family cases to scope.  I would like to abandon the current rules completely.  It is so difficult to obtain ECF today – it’s a terrible situation.  The word “exceptional” is a misnomer if you look at the criteria set out in Gudanaviciene We are talking about cases where there is now no equality in arms and no justice.  They are not exceptional.

Legal aid lawyers in criminal courts

I have a lot of peers who won’t touch criminal legal aid work with a bargepole.  The situation is very worrying.  The Bar Council says that it costs £117,000 to qualify as a barrister.  You then get a pupillage award of £12,000 for that year.  After that you have several years of earnings at under £25,000.   You have to have private wealth now to go into legal aid criminal work.  There is the same situation in the Court of Protection, although it is not quite so bad.  There is a pool of talent which is not coming into this work.

It is hard to express how financially difficult it is for young entrants to the profession to survive at this level.   Few from a state school background are entering this part of the profession because of the huge cuts.   The position is far worse than it is in comparable professions like nursing or teaching or other standard professional jobs, let alone medicine.  We would be happy to compose a piece for you about access to the profession.

Pro Bono work

Law Works or the Bar Pro Bono Unit could tell you what is going on.  You need to receive submissions from them.  There is a lot of enthusiasm for pro bono work from City lawyers, but they are not necessarily qualified to advise in family or housing cases, for example, and pro bono representation is never going to be an answer.

 

C.  CRIME

Written Submission

Criminal justice as an essential public service

Currently only 24% of the public think the justice system is fair and transparent and 63% believe that access to justice is not affordable to all.

The system requires change in attitude across Government and beyond so that the justice system is given the same value as health and education. Criminal legal aid is vital in delivering that access to justice.

A properly functioning criminal justice sector should prevent cases coming to court unnecessarily and helping cut costs.

Criminal legal aid plays a significant role in demonstrating the fairness of our courts in upholding the rule of law, which itself helps attract international litigation and its economic contribution.

Criminal Justice is not an Island

Criminal justice cannot be viewed in isolation. There must be an overarching strategy.  For example, police investigation and CPS prosecution are in need of reform to ensure they are more efficient which would have significant benefits for our courts in saving wasted time.

Criminal appeals and the work of the Criminal Cases Review Commission must be properly funded to ensure the system is working properly and address miscarriages of justice.   Investment in getting it right the first time will save costs in the long term.

Addressing the underlying causes of criminal behaviour is as important as punishing and rehabilitating those convicted of crimes.   If an offender is properly convicted but receives no rehabilitation, their sentence is not a good use of public money.

Reform

Court time, like operating theatre time, should be ‘Golden time’. The criminal legal aid system should reward efficiency and early preparation, rather than paying lip-service to the criminal procedure rules.

The Ministry of Justice should look at innovative pilot schemes as alternatives to prosecution for low level acquisitive offending caused by drug addiction. This could take the form of problem-solving courts.

Take under-18s out of the Crown Court except for the gravest cases where they are jointly charged with an adult.

A simple efficiency would be to prevent unsuccessful private prosecutors from recovering their costs from central funds. Furthermore, short-term investment to fully digitalise the criminal justice system would lead to medium and long-term savings.

 Oral presentation

RC:

We reiterate that legal aid is an essential public service, not a commercial entity.  No other public service would tolerate this type of criticism:

Currently only 24% of the public think the justice system is fair and transparent and 63% believe that access to justice is not affordable to all.

87% of people working in the legal sector consider that it is affordable.  They believe that you will obtain a different result if you are able to pay for your defence.  This is unacceptable.

Criminal legal aid cannot be viewed in isolation. It must be regarded as part of the criminal justice system.   I have worked in the health service and in a local authority and other public services.  The criminal justice system is incompetent and inefficient.  It is the worst of the public services I have worked in.   It is very badly planned.   There is no over-arching strategy.

It is very good that court papers are now to be accessible digitally, but the digtalisation does not extend to the defendant in custody.  They forgot about him.  Here the burden of cost is being shifted to the defence with no additional recompense.   Recently we were served with 10,000 pages digitally, and we tried to get a laptop for our client in prison so that he could view them.  We were told that there were insufficient resources to fund this.  There seems to be a lack of joined-up thinking about the criminal justice system as a whole.

The CPS has been a failing institution for a number of years.  We have to face up to that.  Often you receive no response if you write to them.  Five years ago as a defence lawyer I would have said that it was the CPS who should receive more funding.   Today defence services are equally overworked and under-resourced.  – pretty much as badly as the CPS.  This is a real problem.  You cannot prepare a case properly if the CPS does not respond to your correspondence.

There should be a statutory body to try and bang heads together, like the Youth Justice Board, with over-arching responsibility for the criminal justice system.

Efficiency savings elsewhere would allow more money to be put into criminal legal aid.  Court time should be regarded as golden time.

In the NHS, the emphasis was on ensuring that the most expensive NHS resource – the operating theatre – was used efficiently and only for operations.  Now people think of the trial as the most important part of the process.   But today preparing for trial takes place at the last minute.   We should reward early preparation more generously.  This used to be what happened.   People were paid properly for preparation prior to committal at the magistrates’ court stage, so that less preparation was needed for the Crown Court stage.

The “polluter pays” principle should be applied.   Today if there is a delay or an adjournment there is no incentive for a legal aid lawyer to hold the other side to account for non-performance of a court direction.

If criminal justice were looked at in the round, we wouldn’t have issues being considered in self-contained silos without considering their effect on legal aid expenditure.   I do believe we are at a tipping point in relationship to criminal legal aid.  When we prepared this submission, one of our colleagues who contributed to it was still working at case preparation at 3 am in the morning.   This is a normal pattern.   It cannot go on.   Excellence and people’s liberty is being compromised.   The workload is simply too great.   We are as keen as anyone to eliminate the inefficiencies.

 

D.  CIVIL

Written Submission

Personal Injury case management

Our members were keen for the personal injury practice area to be covered by this Commission. It is an area which faces severe challenges and many Claimants will be unable to get justice for injuries caused by tortfeasors.  Simple reforms could make a huge difference.  A vast majority of personal injury cases settle before coming to court.  However, procedural rules require significant case management at the early stages of litigation.  Instead, the rules should delay such measures, to save costs, to allow settlements to take place.

Article 6 and 8

Whilst pressure on the Government should come from all directions, it is worth noting that the courts have made considerable progress in confirming that there is a right to legal aid under ECHR and the Charter of Fundamental Rights.  This should be recognised in the discourse on justice issues.

Community Legal Service

The challenge faced to ensure access to justice is not a new phenomenon. The Commission may wish to revisit the Access to Justice Act 1999, which provided for the community legal service and the creation of so-called community legal service partnerships up and down the country.

Insurance

The Commission should consider a system of compulsory insurance – before the event cover – in respect of legal costs. There should also be a review of the range of cases to which one way costs shifting may apply.

 

Oral presentation

SH:

I want to address three systemic problems.

First, the 1997 Labour Government introduced the criminal defence service [CDS] and the community legal service [CLS] in the 1999 Access to Justice Act.   I suggest it would be good to look back at the intention behind the CLS and how it was set up.   It was not a complete success, partly because it was too ambitious.    It set up locally managed administration for civil legal aid, which provided services based on local need.   There were CLS partnerships up and down the country.   At least they provided the seeds of a good idea.   If you felt able to recommend a new service of this kind, you would at any given level of provision be able to make allocations of the available resource that were more responsive to local needs.  It is well worth revisiting.

Secondly, the courts are now talking about these problems.  They are declaring what the law is at present.  Lord Dyson in Gudanaviciene was talking about ECF, but the context of his remarks is less important than what he actually said.  In para 46 he made five points:

  • The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts[2];
  • The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily[3];
  • It is relevant whether the proceedings taken as a whole were fair[4];
  • The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through “in the teeth of all the difficulties” does not necessarily mean that the procedure was fair[5]; and
  • Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent[6]

These are quite sensible principles, and LASPO was supposed to be based on them.  If they are applied, you can then have satisfactory access to justice.  We hope you can build on them.  Para 56 is also relevant[7].

There is a case on a related issue that is going to the UK Supreme Court.

How can we give effect to what Lord Dyson said?

Thirdly, if one is addressing access to justice issues when resources are very limited, legal aid can’t be the only answer.  We used to think it was, and if only it could be extended to tribunals, all would be well. This simple solution is no longer available.

There are two issues I would ask you to consider:

  • Before the event insurance should be extended more widely. Should it be compulsory, as with public health for which we pay through our taxes?  It would be a perfectly logical element of civilised society.   Then you can bring or defend claims when necessary.   Even if it is not mandatory, there should be intensive scrutiny of how to promote its widespread use.  I know someone who used BTE insurance to fight off a builder’s claim which she could not have afforded to defend without it.
  • There is another dimension to the same problem: our system for the awarding of costs.  In environmental cases the Aarhus Convention is influential.   In a nutshell, the cost-shifting rule has been modified.  The system is close to Lord Justice Jackson’s suggestion of one-way cost-shifting.   It protects claimants from the excessive risk of adverse costs.   Currently it is almost inevitable that the loser is ordered to pay the winner’s costs.  Some adjustment to the cost-shifting rule would make a huge difference.  This is the biggest deterrent for a claimant.

These two measures would help to improve access to justice whatever is done on legal aid.

CA:

We have included a short paragraph on personal injury law.  There are also very real issues in employment law.  We will explore both of them more fully in our written submission.

Questioned by Commissioners

Personal injury cases

In personal injury law there is now too much emphasis on trying to case manage from the start.   It imposes a huge burden upfront.   The reality of personal injury cases is that most of them settle.  Costs budgeting is very expensive, and judges think that it is a waste of time.   The focus should be on trials.  This would save costs, and the current attempt to micro-manage all cases has the opposite impact.  We recommend costs guidelines that should be applied at the end of a case.   In the fast track even if liability is admitted the cost of experts is such that most solicitors won’t take these cases on because they suffer a net loss at the end.   An increase to £5,000 in the small claims track will decimate access to justice in the vast majority of these cases.

There is no evidence for the so-called compensation culture.   There is a PR battle to be won here.  If you have good guidelines on costs, you can put the threshold quite high for anyone wishing to be treated outside the guidelines.   There are some straightforward changes that can be made.  If time and money can be spared on costs budgets, that would be a good thing.   Most cases settle before trial anyway.

Most personal injury cases are simple.  The issues are not very complicated and there is no need for an expensive driver to identify the issues before trial.   One could dispense with a lot of the current case-management procedures in those cases.

Employment law

On employment law, there is a quick summary of our position on page 51 of our book Law Reform 2015[8].   Everyone will know the devastating effect of Employment Tribunal fees.

Exceptional case funding

You should listen to evidence from lay people who desperately need legal help and at present find it much too difficult to apply for ECF.  There is certainly a need for better guidelines, and we will go away and think about this.

Many people don’t have lawyers.  They are in no position to fill in complicated forms for the LAA.  Some don’t speak English.  Some may not use the Internet.  There would be a lot to be said for judges to take the initiative, as they do today in the higher courts.  If a judge has a LIP in a case, and there is a need for him/her to have legal help if they are to have effective access to justice, the judge should be the one to set the application for ECF in motion.

Costs protection

Between 1949 and 1999 we had a legal aid system in which there were clear criteria for eligibility and a system for cost-shifting.   There was statutory protection for legally aided claimants.  There would be no order for costs against a legally aided party except in exceptional circumstances.

You could return to that system.  BTE insurance should cover your “own client” costs, and for the risk of adverse costs if you lose, you should replicate the old arrangements for non-payment of the other side’s costs.  It would not be perfect, but this model shows that the problems are not quite as insoluble as some people like to suggest.

Questioned by a Commissioner who spoke of the Public Law Project’s detailed knowledge of ECF applications; the need to obtain more information about BTE funding[9]; the presence now of so many under-funded organisations, including social workers, lawyers working ridiculous hours, and a number of them at the limits of their tether; and the quality of decision-making by the LAA

I think the LAA should be separated from the MoJ.   The LAA is just another failing agency, and is just added to the pile of failing agencies.   It needs a radical overhaul.   It was riding on the coat-tails of political interference in the debacle of the litigation over procurement in the criminal legal aid tenders.

 

[1] Mediation Information and Assessment Meetings.  An authoritative website gives this advice: “If you are involved in a dispute concerning your divorce or separation you need to attend MIAMS meetings. These disputes could involve financial or parenting issues. These meetings, which can be held separately or together with your ex-partner, will be able to assess your suitability for mediation. They will also tell you about the mediation procedure. There are only certain bodies who are certified and trained to conduct mediation meetings and you should be sure that the mediators are of the right standard.”

[2]  Airey para 24, Steel and Morris para 59.

[3]  Airey para 24, McVicar para 48 and Steel and Morris para 59;

[4]  McVicar para 50, P, C and S para 91;

[5]  P, C and S para 91.

[6]  Steel and Morris para 62.

[7] “It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness.  The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance.  These factors must be carefully weighed.  Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).  The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.  It all depends on the circumstances…”

[8] Summary of principal recommendations:

  • Ways should be sought to ensure that employment law combats collusion and exploitation while enabling flexible working patterns to flourish, including adopting ‘personal employment contracts’ and creating a rebuttable presumption in favour of worker/employment rights;
  • Extending the concept of unfair employment terms to employees and workers;
  • A future Labour Government should define what an internship is, and unpaid internships should be outlawed from the workplace;
  • Zero hours contracts should be outlawed except in exceptional circumstances.
  • Legislation should be passed to require the payment of a ‘living wage’;
  • Discrimination disputes should be allocated to employment tribunals and not to the county courts;
  • Responsibility for enforcement of employment tribunal awards should be taken away from claimants and handled by a public enforcement office, using HMRC to collect.

[9] It was believed that there has been a law centre project concerned with BTE funding.

One thought on “The new Access to Justice Commission: Update 8 (The Society of Labour Lawyers)

  1. Pingback: The Bach Report: (2A) Two speeches at the launch of the report – Henry Brooke

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