This week’s roundup of legal news and comment includes legal aid or the lack of it, judicial responses to court reform, women in the legal profession, use of experts in family cases, and a law reporter’s fictional case study.
Lukewarm reception for LASPO review
The Government’s long delayed Post Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (CP 37) was received last week with less than ecstatic rejoicing. LASPO came into force on 1 April 2013 and the view among most legal professionals, including many senior judges, is that its effect on access to justice has been little short of disastrous: see The Legacy of LASPO. Little or no evidence-based research was done before the massive cuts to eligibility for legal aid were implemented, but the Ministry of Justice initially promised a comprehensive review of its effect in January 2017. That was then delayed by the snap election that year, but the review was eventually set up and its terms of reference published in March 2018.
The cuts effected by LASPO are said to have saved that querulous beast, the taxpayer, some half a billion pounds per annum. (The shibbolethic taxpayer works hard, never needs legal assistance, is never ill, never uses public transport, and hates seeing their hard-earned money being spent to anyone else’s benefit.) So while the review accepts that “everyone must have the ability to avail themselves of the justice system when they require it”, legal aid has to be “sustainable” in “the context of the economic downturn” (even more so than other areas of public spending, it seems). LASPO may have “achieved its objectives of delivering significant savings” but its impact, the review admits, has created “a number of challenges”.
The review reveals that reduced fees for civil and family lawyers has led to a drop of 32% in the number of providers doing legally aided work, and “the legal profession is no longer attracting the next generation of legal aid lawyers”. In criminal cases, legal aid grants in the magistrates’ courts have decreased by 45% and those in the Crown Court by an estimated 27% over a seven year period. Changes to eligibility, scope and fees have led to legal aid deserts and many resorting to representing themselves in court or resorting to unqualified and unregulated McKenzie Friend advisers.
Much of the evidence suggests that (a) early intervention saves money and (b) problems often occur in clusters, so it doesn’t make sense to provide aid for some problems but not others. Lack of awareness of the aid that is available means even when it hasn’t been cut, legal aid isn’t being used.
The government appears to recognise the problems, or some of them, and has promised to “conduct a review into the thresholds for legal aid entitlement, and their interaction with the wider criteria” in civil and family matters. There will be some more money, in some limited areas, but its main proposal is an Action Plan called Legal Support: The Way Ahead (CP40). The general idea behind this is to provide help and intervention to people before their problems require legal advice, let alone litigation. (It includes ideas such as co‑location of support services, eg providing a legal advice hub, peopled by students, in a medical practice.) In his foreword, the Lord Chancellor David Gauke says:
For too long our approach to supporting access to justice has been concentrated on funding for court disputes. There are too many people entangled in the justice system for a variety of issues, and some may not necessarily need to be there. Our ambition must be to give people the tools to resolve their problems well before this point, before they become legal problems that require a court visit and a lawyer. Early intervention is key and it is upon this that our new vision for legal support is founded.
See also: Government sets out new vision for legal support (in which justice minister Lucy Frazer says:
“We have carefully considered the responses in this review and will expand the scope of legal aid to cover new areas of family law, launch a review of legal aid eligibility thresholds, invest up to £5 million in delivering innovative services and test new methods of support to help people resolve their problems quickly and easily, in the way that best works for them.”
A number of commentators have been less than enthusiastic about the government’s promises of amelioration and reform. In a blog post on Free Movement, Conor James McKinney points out that:
Despite evidence of the impact of cuts over the past five years, and the role that legal aid would have played in preventing the Windrush scandal, the Ministry of Justice has refused to roll back the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as it relates to immigration work. The sole exception is an amendment granting legal aid to unaccompanied migrant children.
The review, published this morning, shows an 85% reduction in legal help for non-asylum immigration matters since LASPO, and a 62% reduction in full representation.
Commenting on the government’s Action Plan, Jane Robey, CEO of National Family Mediation, said
“This is a missed opportunity: a very disappointing outcome to a process into which many professional organisations and individuals invested considerable time and ideas.
“The report offers a number of broad, wishy-washy statements and recycled money which kick down the road the can of effective support to those who most need it. We are afraid that offering legal help hubs in GP practices smacks of a bid to create an eye-catching distraction from the real issues at stake for people suffering the consequences of being denied legal aid.”
Evaluation of Reform programme
In its report last year, Transforming courts and tribunals (HC976) the Public Accounts Committee was very critical of the HMCTS Reform programme, which is spending £1.2bn transforming our still largely 19th century justice system into something fit for the 21st century. The PAC concluded:
“We have little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age. […] We remain concerned that the Ministry of Justice is taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures. […] It is not clear to us how the Ministry aims to flex its priorities and balance its budget whilst maintaining critical public services.”
The PAC made a number of recommendations, to which HMCTS has now provided five numbered responses, four of which were published at the end of last month:
- Delivering our reforms: setting out an updated timetable for delivery and the progress made by HMCTS in delivering on various “milestones”
2. Putting people at the heart of reform: setting out who will be affected by the reforms and what the changes will mean in practice for all users
3. Engaging with our external stakeholders: explaining how HMCTS will engage stakeholders with its reform programme (published November 2018)
4. Evaluating our reforms: setting out how HMCTS would provide proper evaluation of the changes it was implementing and their impact on people’s access to justice, and the fairness of the justice system, particularly in relation to vulnerable people.
5. The financial impact of reform: setting out the collaborative approach HMCTS is taking in identifying and managing any cross-criminal justice system financial impacts and the likely financial implications of the reforms on the wider justice system.
See Response to Public Accounts Committee: Transforming courts and tribunals, from which PDF copies of each of the responses can be downloaded.
The Reform programme has been partly designed and managed by the senior judiciary, and the judiciary as a whole have been invited to provide feedback. Now Lord Burnett of Maldon, Lord Chief Justice and Sir Ernest Ryder, Senior President of Tribunals, have published the results of the ‘Judicial Ways of Working’ (JWoW) exercise, which they describe as a
“wide-ranging exercise to gather the view of judges, panel members and magistrates on aspects of the proposals which underline the modernisation and reform programme of our courts and tribunals”.
They say that:
A number of themes emerged from the ‘JWoW’ exercise. They included the need for the new technologies to work and for judges to be properly trained on new systems. Judges were understandably concerned about the impact of the programme on staffing levels and on court closures.
The Heads of Jurisdictions have summarised the position in four separate reports:
One aspect that has been highlighted is the question of maintaining open justice in a virtual or online “hearing” environment. This is something about which there seems to have been very little public consultation, and on which the somewhat ad hoc solutions so far proposed and piloted seem to have been subject to very little public or even media awareness, let alone testing or scrutiny.
Penelope Gibbs commented on her Transforming Justice blog, Court hearings on demand — a triumph for openness or an invasion of privacy?
See also this thread on Twitter by Judith Townend:
FGM law blocked by MP
Sir Christopher Chope MP, a former barrister and pro-Brexit conservative MP for Christchurch who in 2017 was knighted for “political and public service”, has caused outrage once again by using a technical parliamentary procedure to block the progress of a bill designed to help protect girls from the scourge of female genital mutilation. The Tory backbencher shouted “object!” when the bill was presented to the Commons for its second reading on Friday. The Children Act 1989 (Amendment) (Female Genital Mutilation) Bill, co-drafted by the Conservative MP Zac Goldsmith and crossbench peer Michael Berkeley, did not at the time have government support, so had to compete for parliamentary time in a busy session. Its next chance of a second reading will be on 15 March but the government (some of whose ministers have expressed their dismay at Chope’s antics) has now indicated it will find time from its own Commons timetable to get the bill passed.
This is not the first time Chope has blocked a bill in this way; but though he claims to do so as a matter of principle, it seems he is not consistent in doing so. Last year he blocked a bill to outlaw upskirting (see Weekly Notes 18 June 2018) According to the Guardian,
Goldsmith called Chope’s decision to object “appalling”. In another tweet, he said: “In case anyone is tempted to believe he has a principled objection to private members’ bills, please note that once again he did NOT object to those put forward by his friends.”
Chope’s latest random exercise of his principled objection to insufficiently debated bills has made him the subject of disquiet among his own constituents, according to the Bournemouth Daily Echo: Sir Christopher Chope to be quizzed on reasons for blocking FGM bill which reports that
“Christchurch and East Dorset Conservative Association chairman Cllr Ray Bryan told the Daily Echo an urgent meeting of the association’s executive would take place, where Sir Christopher will be asked to explain his reasons for objecting.
‘Conservative councillors for Christchurch would like to make it clear the actions of our MP in no way reflect their opinions. They do not believe that pedantry should take precedence over human rights and it is time for the misogynistic old guard to recognise and reflect the opinions of the modern Conservative. FGM is not acceptable in today’s society and we hope that the House of Commons will find a way of dealing with this as a matter of urgency.’”
Problems for women at the criminal bar
We covered some of the issues around work-life balance for women at the bar a fortnight ago in Weekly Notes 28 January 2019 including the Western Circuit Women’s Forum Back to the Bar report and Lucy Reed’s bulletin from the coalface of the family courts. Now the perspective of women at the criminal bar has been revealed in today’s Monday Message from the Criminal Bar Association chair, Chris Henley QC. Having quoted four examples of women barristers experiencing judicial bullying and ill-making stress, he writes:
It is little wonder that so many women (and men) are turning away from the criminal Bar; the environment is increasingly hostile. The hours are punishing and unpredictable, often late into and sometimes through the night, the personal sacrifices are huge, fees are derisory, not remotely stacking up for the necessary childcare or breaks, and the treatment from all directions too often is very unpleasant. Is there another profession whose pay has fallen like ours, and who have to tolerate such awful and deteriorating working conditions?
He describes the exodus of talented women from the bar as a ‘crisis’ and says there is too much talk of diversity and well-being and not enough action.
There are also many in senior positions who have never changed a nappy, had years of interrupted sleep, or the daily admin of kids, and who practised at a time when the work was plenty and the fees were wow. They all have a choice, to continue to manage an orderly decline and withering of the publicly funded profession or to fight for it.
The message could not be clearer.
Guide on use of experts
The Transparency Project have published a guidance note for anyone involved in a family court case, who is trying to understand more about the use of experts in family proceedings. It deals, among other things, with the sort of questions clients might ask when told an expert may be engaged to report in the case, the types of expert who might be engaged and why, and how to challenge an expert’s evidence.
EXPERTS | The Transparency Project
Below is an online version of our Guidance Note, The Use of Experts in Family Court Cases Involving Children, funded by…
What next in family legislation?
And, on the Transparency Project blog, No fault divorce and the media
The Legal 500 UK Awards 2019 took place at the Guildhall on the evening of 6 February. Photo from their website. The winners are too numerous to list here, but you can read them on the Legal 500 website by category:
Solicitors Journal awards
Although the website says the deadline for entries is 13 February, it has now been extended until February 22nd. You can view the categories here.22
Dates and Deadlines
Parole Board event
22 February 2019— Sheffield & District African Caribbean Community Association (SADACCA), 48 The Wicker, Sheffield, S3 8JB
The Parole Board is holding a recruitment event in Sheffield on 22 February to discuss why it must improve the diversity of its membership and to encourage people from all (but particularly BAME) backgrounds to apply to be a member. The event is hosted in partnership with JUST Yorkshire — a leading project in the North promoting racial justice, human rights and equality — and Sheffield and District African Caribbean Community Association (SADACCA). Speakers will include Martin Jones, CEO of the Parole Board, Nadeem Murtuja, Interim Director at JUST Yorkshire, and Parole Board members, who will discuss why it is vital to improve diversity and what it takes to make parole decisions. People can register to attend the event here.
Great Legal Bake 2019
25 February to 1 March 2019
ICLR is once again taking part in the London Legal Support Trust’s annual baking event. It is one of two ways in which we help raise funds to provide much-needed free legal advice in the desert left by savage legal aid cuts. The other is the LEGAL WALK which will take place in June.
You can donate via our event page on VirginMoneyGiving.
Temple Women’s Forum: How Far Have We Come?
28 February 2019 at 5.30pm onwards — Inner Temple, London
On the eve of International Women’s Day and in the pivotal 100th anniversary year of the first woman to be admitted to an Inn of Court, the Temple Women’s Forum would like to invite you to take part in a conversation about how far women have progressed since first being granted the vote in 1918. The panel will consist of women from law, journalism, politics and the arts, including:
Dana Denis-Smith (founder of First 100 Years project, former international journalist and Linklaters lawyer)
Baroness Helena Kennedy QC (barrister, broadcaster and Labour member of the House of Lords)
Dr Maggie Semple OBE FCGI (QC Appointments Panel, Founder of The Experience Corps Ltd and Maggie Semple Ltd)
Suella Braverman MP (Conservative MP for Fareham)
Open to: Members of the four Inns and Solicitors. BOOK HERE
Law reporter’s third novel
Former ICLR law report Elanor Dymott recently published her third novel, Slack-Tide, to great acclaim. This “compelling portrait of a breakup” (Guardian) with its “ carefully crafted atmosphere” (Financial Times) is a brilliant depiction of both romantic rapture and heartfelt delusion” (Daily Telegraph) that “lands a hefty emotional punch” (Literary Review).
The novel charts, month by month, the turbulent course of a brief but intense relationship between the narrator, Elizabeth, recovering from a marital breakup after a tragic miscarriage, and an older man, Robert, whose overconfident certainties about life don’t seem to include whether he has really got over his first marriage yet and whether or not he might want a child with Elizabeth. After a series of disappointing affairs, Elizabeth is initially happy to be overwhelmed by Robert’s alpha-male personality and extravagant gifts, but she begins to resent the way he insists on arranging and paying for everything, expecting her to come along for the ride as little more than a kept woman. Her friends are supportive and fun, but his seem to inhabit a more remote and glittery world — which in the end she rejects.
Though readers may recognise these characters as conforming in some ways to types, Dymott’s prose is so precise and sure of itself that you cannot help being drawn into the voyage of their romance, even though you know its doomed destination. Plain sailing it is not — and one may use these seafaring metaphors with confidence, since the author herself precedes each chapter of her log with a charming nautical reference, accompanied by lovely line drawings.
You can read our review of Dymott’s last novel, Silver and Salt, on our blog.
That’s it for this week! Thanks for reading. Watch this space for updates.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.