Do It Yourself?

social justice

 

Need a lawyer?

For an increasing number of people embroiled in legal action in the UK the answer may still be yes, but it’s the question that needs updating.

Since drastic Legal Aid cutbacks were implemented in April 2013, more and more people have to ask themselves whether or not they can afford a lawyer. For those who can’t the options and the consequences can be ugly. The impact in England and Wales has been telling. Year on year, the number of people representing themselves in Welsh courtrooms almost doubled between 2012/13 and 2013/14.

Crispin Masterman, a former family judge in South East Wales has recently drawn attention to the damage this can do to the family unit. Mr Masterman and many others in the profession are convinced that removing lawyers from the legal process directly causes delays, and where proceedings concern family law he fears that children often suffer most,

“The damage that’s done is both emotional and probably, in some cases, psychological as well, and the difficulty is that parents don’t see this, they’re so tied up in their own issues that they forget that the child’s welfare is the paramount issue.”

Anticipating this increase in “per se” representation, the Bar Council of England and Wales published a detailed guide for anyone considering this route when the funding cuts were first announced. Well-intentioned as this was, can untrained, unqualified private citizens really be expected to represent themselves adequately in a highly-charged courtroom setting?

The National Justice Committee certainly doesn’t think so. Comprising the Criminal Law Solicitors’ Association, the London Criminal Courts Solicitors’ Association, the Legal Aid Practitioners Group, the Justice Alliance and the Criminal Bar Association, this group has repeatedly voiced its opposition to the cutbacks. Its members believe a fundamental principle – and the concept of social justice in this country – has been compromised.  

The legal profession hasn’t always been portrayed flatteringly in the media or in popular culture. For every Atticus Finch in To Kill a Mockingbird there are many more John Miltons, portrayed by Al Pacino in The Devils’ Advocate as not only a venal attorney but the devil incarnate. Many people question the motives and even the necessity of lawyers. Professionals on both sides of the Atlantic would no doubt prefer to identify with the slogan of the 1996 American Bar Association’s national convention:

“Freedom, Justice, Liberty — without lawyers they’re just words.”

Language service providers can easily identify with the lawyers they support. Where Google offers a cheap substitute for professional translation, self-representation is the budget alternative to skilled professional advocacy. In both examples, important details will be lost along the way. We sympathise with those who have no alternative to self-representation and we applaud the lawyers who continue to stand up for their rights, but the message is clear. Professionals get the job done. Just as language issues need to be resolved by a professional translator, the courtroom is an arena for the lawyer.

 

The Good Fight

the good fight

 

A person steps off an aeroplane, a train or a ship. They set foot onto British soil, entering this country legally and in good faith. At what point do they become entitled to the same basic legal rights as a UK resident? At what point may they make a claim for Legal Aid?

Chris Grayling, the Lord Chancellor and Secretary of State for Justice, believes they should have to wait at least one year. He successfully drove a measure to that effect through the House of Commons, invoking the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Mr Grayling, the first leader of our judicial system in 400 years to have no legal background whatsoever, argued that this was a necessary move which would ensure public confidence in Legal Aid spending. Perhaps among some sections of the public it would. But should our laws, and the fundamental rights of those who visit these shores, be truncated to please those sections of the public?

Yesterday a specially convened Divisional Court, headed by Lord Justice Moses, ruled emphatically that they should not.

In ruling that Mr Grayling exceeded his statutory powers in devising the proposals and describing them as ‘unauthorised, discriminatory and impossible to justify’, the Court drew a clear line. Sweeping, potentially discriminatory changes are not to be ushered in through a legislative back door on cost-cutting grounds.

Mr Grayling might reflect that public confidence in Ministry of Justice spending, particularly relating to citizens born outside the UK, has taken a severe beating over the past two and a half years as a direct result of the Ministry’s own decisions. The appointment of a single agency to manage all courtroom interpreting services, devised as a cost-cutting exercise, brought chaos, spiralling costs and countless delays to trials throughout the UK almost from the moment the contract began in January 2012. With this in mind, any perception among the general public that non-natives are costing them money and taking advantage of their system hardly seems fair, and surely should not be pandered to.

The Divisional Court would presumably agree. It made clear its distaste for proposals that would deny support to vulnerable groups highlighted in specific, detailed examples.

Do we really want to deny basic support to the families of children with special educational needs, or to those individuals who lack mental capacity and need the help of others in any legal situation, or to those resident abroad who have been subject to serious abuses at the hands of UK forces?

 

Is that our law?

Is that our country?

 

If we see this as a point worth fighting for, then when Parliament won’t fight for it we should be thankful that the judiciary and the legal profession will. In this case we should be particularly thankful to the Public Law Project, who brought the test case, to John Halford and Stephen Grosz of Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.

And of course to the Divisional Court. This was Lord Justice Alan Moses’s final ruling before stepping down from the bench. Many of us would argue that it’s a fitting and impactful farewell, and a fine legacy. Never afraid to argue against political action that he viewed as unworkable or unjust, he has used humour as a powerful weapon. Last year he wrote a spoof application to become the next Lord Chief Justice including a 2,000 word essay which eviscerated the government’s legal aid proposals. He jokingly suggested that to save money judges should compete to produce the most judgments in the shortest time, and solve funding problems by accepting sponsorship from companies such as L’Oréal, Silk Cut and Virgin.

We can only hope that what a wise and principled man suggested in jest will never be embraced in seriousness by those more foolish.

 

David Jones