Monday, 3 November 2014

The Tuesday Truth

Today’s Tuesday Truth focuses on 2 events on 31st October: The judicial intervention describing the state’s avoidance of its responsibility to ensure access to justice and the CLSA conference at which the Labour party unveiled a plan ( or perhaps is better referred to as a micro plan or planette) to ensure that access to justice under a Labour government will remain an aspiration rather than a reality.

The judgment handed down by the head of the Family division on Friday 31st October provided overwhelming evidence of the erosion of access to justice at the hands of this government. The story set out below is not about austerity, it is about an appalling withdrawal of public funding for vulnerable members of society. It is nothing short of shameful for a democratic country to have allowed such a scenario to arise, but it is not surprising bearing in mind the consequences of LASPO.

The issue before the court was whether a little boy D should live with his parents, his wider family or as argued by the local authority be adopted outside the family. The issue therefore for both the boy and his parents could hardly be of more profound significance. Both parents had severe learning difficulties.

The court’s main and understandable concern was with fair trial rights and access to justice where a state agency sought to take away a child from their parents permanently and that same state had introduced changes which denied the parents access to legal aid to defend such an action. The court described this scenario as unthinkable.

The judge criticised the state for washing its hands of a problem that it had created describing its conduct as both "unprincipled and unconscionable". In circumtances which were wholly predictable, the state had placed itself  in breach of its obligations under the European Convention of Human Rights. Legal representation was only available if lawyers agreed to work for nothing.

How can we stand by and allow this government to proceed with this abuse of power? All lawyers whatever their background should be appalled and each of us lawyers and non-lawyers alike should be alarmed by the  extra tools the state is awarding itself to defeat anyone or anything that gets in its way.

On Friday 31st October at the same time that Sir James Munby's judgment was gaining circulation, Andy Slaughter shadow minister for legal aid addressed the Criminal Law Solicitors Association conference. Much of his address was spent criticising the current Lord Chancellor for his attack on access to justice.

We are all too aware of the brutalist excesses of the current Lord Chancellor. The audience was much keener to hear how any future Labour administration would address the now yawning justice deficit.

Regrettably, Mr Slaughter said  little to enthuse an audience that has taken the fight for justice to the courts and the streets. 

He indicated that if elected his government would carry out a full review of legal aid. There would be "consideration"as to whether in light of the reducing spend ahead of schedule on criminal legal aid there was any need for the second cut of 8.75%. He also indicated such a review would consider whether the two tier approach to criminal legal aid contracting was the best way forward particularly in view of the evidence currently available. Many interpreted this as a strong hint that if Labour came to power they would abandon the 2 tier proposal. This is welcome but of course by itself does not cure the two tier justice system which has already appeared under the last two administrations.

He was criticised for stating that a labour government would not reverse cuts and would place greater emphasis on mediation, in other words preserving the restrictions on access to justice introduced by the current coalition government.

In truth successive Conservative and Labour governments have not been kind to the provision of legal aid. Slaughter said he wants to engage with the profession but as Greg Powell former president of the LCCSA pointed out, numerous ministers with the portfolio of  legal aid have been polite in exchanges and meetings but none have ever really listened.

Robin Murray vice chairman of the CLSA raised the interesting issue of the role and power of civil servants in legal aid arrangements. The costs for delivery seems to have risen consistently for many years whilst our fees have been so savaged for nearly 20 years that they are barely sustainable.

Why do we need legal aid contracts at all? Surely if a firm has an SQM or other acceptable quality mark they should be able to apply for a legal aid order for a particular matter and claim from the agency in the appropriate way. No contracts, no franchising, potential for huge savings at the legal aid agency end but of course less jobs for civil servants.

The CLSA conference rightly highlighted the outstanding leadership of both Bill Waddington and Robin Murray who had led the profession with courage and had contributed so much particularly in relation to the JR victory.

In a panel discussion at the end Richard Miller of the Law Society stated that the Law Society had raised many problems with the MOJ about the dual contract approach and had not received any proposed solutions. Furthermore he stated that if the MOJ proceed with the duty contract tender the Law Society would seek legal advice re a judicial review and would want to work with the Criminal Law Solicitors Association and London Criminal Courts Solicitors Association. Richard Miller has always been a great friend to the profession but it was still reassuring to hear a Law Society Official speaking in these terms at the conference.

Finally at the same panel discussion Mark George QC emphasised how many members of the bar had been and remained opposed to the deal struck by the bar. He stated that the CBA had effectively accepted the first offer as soon as Grayling came running. He said that the biggest danger to the bar was 75% of its suppliers being wiped out through the duty solicitor tender.

He emphasised the need for unity. On the same panel Jon Black due to be elected President of the LCCSA next Monday 10th November stated that the leadership of the representative organisations would need proper assurances from the bar before there could be any joint engagement in future protests.

So where does that leave us all?  We await the MOJ proposal on the duty solicitor contract scheme, but the bigger picture is bleak, we need to fight on the principle of legal aid and access to justice whether civil or crime.  The CLSA conference applauded the leadership and fight showed by the leadership of the CLSA and LCCSA, the fight is far from over. There is an election coming we need to make sure that legal aid remains on the agenda. It is clear that the Labour Party either remains in denial about the disintegration of our justice system or is so in thrall to the austerity project that it would rather sacrifice access to justice than take a lead in restoring equality and fairness through restoration of legal aid funding and scope. 

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