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LASPO – It’s time for a review, but by whom?

Posted on 25th October 2016

‘A plea to all the lawyers – those coming up and those already there. You have got to accept that bandying about access to justice, it’s really quite fraudulent. To govern is to choose. Is £1.6bn access to justice? Or is it £2.4bn? Lawyers forget where the money is coming from, it’s the taxpayer’s. So which department are you going to take the money from? … Seeing lawyers outside the Ministry of Justice looking like 1970s trade [unionists] does not help the status of the profession or find a solution.’

Lord Justice McNally (September 2016)

What could only be described as stunned silence greeted the above pronouncement from Lord McNally, co-sponsor of the Legal Aid Sentencing and Punishment of Offenders Bill, made towards the end of a talk entitled ‘Legal Aid: Its Role in an Effective Justice System’ , which I attended last month..

Having already endured Shailesh Vara MP (former Parliamentary Under-Secretary of State for the Courts and Legal Aid during the Cameron premiership) defending the residency test and engaging in typically Orwellian government double-speak by simultaneously highlighting the importance and pre-eminence of Legal Aid in British society whilst arguing for its destruction, it was difficult to imagine how the evening could get any more contemptible.

How easy it is to underestimate the audacity of politicians. There is so much wrong with Lord McNally’s diatribe that the only way I could attempt a rebuttal is by dissecting this egregious corpse of an assertion one foul organ at a time:

“You have got to accept that bandying about access to justice, it’s really quite fraudulent”

From a criminal law point of view, to commit a fraud refers to a category of various offences all containing the same element –dishonesty. Clearly a serious accusation levelled at a roomful of lawyers. What is it that Lord McNally thinks we, as a profession, are being dishonest about? What agenda are we hiding beneath the guise of fighting for the disenfranchised, the destitute and the captive?

The accusation is almost certainly one that the legal profession has had to deal with over and over again since Legal Aid cuts were introduced; the accusation of self-interest.

The basic assumption seems to be that Legal Aid lawyers want more legal aid so they can get paid more. It is my experience however, that people do not choose to specialise in Legal Aid work for the money. Though it would be disingenuous to suggest that we do not aspire to have fruitful and successful careers, ask any Legal Aid lawyer and (hopefully) any legal aid client and they will all say that we do what we do because we believe it is important and meaningful work.

It is important to remember that recent governments have not reserved this particular accusation solely for lawyers. Jeremy Hunt’s ongoing battle with junior doctors is a prime example of this. The media however seem to be less forgiving when it is levelled at to my chosen profession and the public less willing to depart from the stereotype of the “fat cat lawyer”. Perhaps it is easier to imagine yourself needing life-saving surgery in the future than the possibility of being arrested, needing protection from an abusive spouse or having your children taken away.

I would like to suggest a far better example of dishonesty: insulting professions that devote their lives to trying to improve the lot of others by screaming self-interest whilst all the while hamstringing the individual’s ability to challenge any decision you make.

Saying that a legal aid lawyer’s concerns about cutting legal aid are biased and self-interested is equivalent to telling the fireman at your door that your house is fine and that the flames cut down on heating costs, the smoke only bothers the neighbours and he should stop looking for work to do.

“To govern is to choose”

Many may recognise the above as part of a quotation from Nigel Lawson, Chancellor of the Exchequer during Margaret Thatcher’s second term as prime minister (an interesting source of wisdom from a Liberal Democrat peer), namely: “To govern is to choose. To appear to be unable to choose is to appear to be unable to govern.” I have always found that quotation to be rather unflattering of the political class. It seems to be suggesting that it is better to do any old thing rather than properly consider the important issues and make an informed decision. A better definition for governance I would propose is this: “to govern is to choose wisely”.

Which begs the question: how do we go about making a wise decision? The easiest comparison can be found in our day to day lives. If your car breaks down, your boiler stops working, your house is on fire or when ghosts appear in the attic, who you gonna call? The expert. It has been the government’s long term strategy over the last six years, however, to force a wedge between the expert and the service user/patient/client. Disturbingly, as I was walking out of the room I started hearing Michael Gove’s words, almost from beyond the grave, uttered during his Brexit Campaign: “I think people in this country, have had enough of experts”.

No-one should expect politicians to know everything. What we do expect is for them to make their decisions, having weighed up the considerations of the British public, giving the appropriate consideration and respect to the advice offered to them from people who have the necessary experience and expertise instead of objecting every time someone dares to point out an inconsistency in their position.

Is £1.6bn access to justice? Or is it £2.4bn? Lawyers forget where the money is coming from, it’s the taxpayer’s. So which department are you going to take the money from?

Access to justice, or lack thereof, isn’t something that should bear a dollar price-tag. It’s about the real effect it has on the lives of individuals and families. Peter Crisp, Dean of BPP Law School, mentioned in his speech the case of D , where the autistic parents of D (a child placed under care, partly as a result of their condition) were unable to effectively challenge the adoption of their child due to Legal Aid funding being unavailable. This is but one example from thousands of cases. Thousands. Not a few exceptional cases but thousands of them. Access to adequate health provision, access to clean air, food or water and legal representation where your life, family life and liberty are at stake are all, in my view, non-negotiable rights.

As for where the money should come from, the question remains a loaded one so long as any mention of raising taxes or increasing public spending is greeted with the deafening chorus of “but austerity!”

Seeing lawyers outside the Ministry of Justice looking like 1970s trade [unionists] does not help the status of the profession or find a solution.

To quote a popular internet meme: I Don’t Even… which the Urban Dictionary helpfully describes as: “When something is so surprisingly stupid, you can’t even fathom a way to react.”

A review is needed

The one redeeming feature of Lord McNally’s comments was to be found in his call for a review of LASPO. Indeed, he expounded his endeavours of attempting to form a cross-party committee to review the effect LASPO has had on those living in Britain. In fact, a review was promised to take place within three to five years of LASPO coming into force. The clock is now showing three years and five months.

Though we can all agree that a review is the start of the solution, the problem remains as to the reviewer. As long as austerity (which according to Mr Vara is “An economic fact!” rather than an ideological choice) remains the order of the day, I do not trust any politician, from either side of the political divide, to do much more than tut their lips lamenting the misfortune of their constituents, all the while having to explain that bankers’ bonuses have increased by 52% in the last year , MP’s salaries are beefed up and big businesses continue to avoid tax.

 

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