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Archive for April, 2013

Legal aid

Legal aid
Legal aid was conceived as a cornerstone of the welfare state. The current system was created by the Legal Aid etc Act 1949 as part of the welfare state at a time when free access to justice was regarded as a fundamental right in the same way as education and healthcare. At its inception, the scheme covered 80 per cent of the population. The principle was that legal aid should be available in those types of case where lawyers normally represented private individual clients. Public funding should not be limited to people normally classified as poor, but should include those of small or moderate means. Legal aid was introduced against a background of a Britain which was exhausted and bankrupt after World War II and deeply indebted to the United States.
The gradual dismantling of the welfare state and its replacement with profit-making institutions has not been limited to medicine, education and social services. It has had dramatic effects on the availability of legal remedies for the poor.
It is well known, if not often acknowledged, within the profession, that one reason why legal aid was reformed and restricted – a reason against which it was difficult to argue – was that the greed of lawyers in exploiting the legal aid system had led to runaway costs. This greed gave significant ammunition to those whose aim was the removal of welfare state principles from the legal system. Lawyers’ devotion to money resulted in a drying up of money from the state. It must be recognised and accepted that the reality was that the legal aid system was abused by lawyers. This is known to those of us who practised under the old legal aid system. High fees were demanded and paid. The cost of the system ran out of control. The result of this has been its Americanisation by the introduction of conditional fee agreements.
Legal aid is increasingly an irrelevance. Eligibility levels are now down to 29 per cent and personal injury cases are not covered at all. The reality is that legal aid is now known as a sink service for those on means-tested benefits.
This has been described as the justice gap, which is the legal aid vacuum, occupied by an increasing section of society which is neither sufficiently impoverished to qualify for legal aid nor able to afford a lawyer.
An example of the practical effects of the withering away of legal aid is given by the Legal Action Group (LAG) in its study of Dover magistrates’ court on a repossessions day. There were 35 listed repossession cases. The debt adviser from the local CAB was reported to have commented that many of the defendants were traumatised, unsure of what was going on, totally ill-informed and prepared to lose their homes because they thought that there was no alternative.
A LAG spokesperson made the point that in Britain today people can lose their homes through a legal process, often unnecessarily, in ignorance of the law and after being misled about their rights, without access to legal advice.
The English legal system now has disturbing similarities with the unreformed American healthcare system. It is mainly available only to the very rich or the adequately insured, and it bankrupts victims.


Alternative practice

Alternative practice
The practice of law in an alternative way attempts to address the fact that the poor are denied justice and to resist the fact that law is used by many lawyers as a means of making large sums of money – in some cases, obscenely large.
Alternative practice challenges the absurdly unbalanced relationship between the most highly-paid lawyers and poor people who cannot afford their services.
It resists the deliberate obscurity of legal rules, interpreted and explained by the legal priesthood, which mean that even the most articulate and highly educated non-lawyer finds it practically impossible to penetrate the curtain of incomprehensibility.
The following are suggested ideas for the development of a legal practice outside the mainstream. In this context it is important to note that all aspects of legal practice in England have changed significantly during the last decade, and are likely to develop further. Most of these changes have followed a neoliberal agenda and reflect movement towards the free market, for example the permitting of mixed legal businesses and direct access to barristers.
The following proposals have nothing to do with the often-quoted and accepted supremacy of the market. Rather, they defy market forces and aim to develop legal practice, not in the interests of an elite profession, but in the interests of deprived groups, for example the poor, the homeless, the unemployed, the disabled and victims of discrimination.
Campbell’s view (The Left and Rights) is that the radical lawyer is both tolerated and ignored. Tolerated because his existence seems somehow “good” for the profession at large – making it representative of all opinion – and ignored because what he does in the affluent liberal hour threatens no-one. The radical lawyer is entangled in a situation where he is committed to undermining the very structure which provides his own power base.
The theoretical basis of alternative practice involves the following principles:
• Resistance to war, racism, discrimination and exploitation
• Opposition to money fetishism
• A commitment to demystification
• The pursuit of social justice
• Opposition to traditional formalities and conventions which hinder access to justice.

Many English lawyers with a social conscience are so involved with making money or with the daily pressures of court work that alternatives to the current system are never considered. The great majority of lawyers, being essentially conservative, practise according to traditional conventions. The time demands of practice can offer few opportunities for lawyers to stand back and think about alternatives to mainstream practice. There is an almost unbridgeable gap between critical academic lawyers on the one hand, and coal-face practitioners on the other (although it is unrealistic to compare the daily work of the lawyer with that of the miner). The dynamics of daily practice can result in lawyers submerging their ideals to economic considerations and pragmatic results.
Traditional practice as a barrister confirms, and indeed encourages, remoteness from the client. Barristers have traditionally kept clients at arms length through the rule that a solicitor must act as an intermediary. This principle has been eroded by the introduction of public access rights, but it is important to be aware that this relaxation was forced upon the profession in the teeth of determined opposition. The profession has always emphasised objectivity, detachment and the application of legal skills as a technical exercise.
An American commentator has stated the view that many of the left-wing lawyers who preached revolution thirty years ago are now well-paid members of the legal establishment. Some use their power and status to help poor people: others do not. The experiences and day-to-day practice of American radical lawyers is very different from their English counterparts: the Americanisation of the English legal system has not extended to the adoption of radical US techniques.
Everyone knows that poor people find it difficult to have effective access to justice. This is accepted as if it were as inevitable as English weather. The mainstream discussion of alternatives to this state of affairs generally involves a tinkering with financial elements of the system, for example franchising or marginally increased money for Law Centres. As these arcane discussions continue, poor people continue to suffer. Are there serious alternatives to traditional practice? This question is seldom raised.
For largely tactical reasons, alternative practice must come within the scope of the detailed practice rules laid down by the Bar Code of Conduct, and in full compliance with the overriding duty of a barrister to promote and protect fearlessly and by all proper and lawful means the client’s best interests and do so without regard to his own interests or to any consequences to himself or any other person.

Practice as a lawyer can be “alternative” in the following ways:
• Money. By not treating money as the primary consideration when dealing with a new client. This is the key basic principle. It contradicts mainstream practices and values, and defies the free market. If a client of an alternative practice has no money (which would almost certainly rule him out from the mainstream) it is crucially important that his case is handled with as much care as a paying client. There are a number of ways in which money fetishism can be dealt with. These include charging according to the means of the client, not submitting a bill if the claim is unsuccessful, accepting payment in instalments, and bartering. Bartering can be a radical alternative to charitable work. Legal services can be exchanged for whatever the client can offer, or has a surplus of. The Bar Code of Conduct does not deal with bartering, but the most relevant provision of the Code states that a self-employed barrister may charge for any work undertaken by him on any basis or by any method he thinks fit, provided that such basis or method is permitted by law. The lawyer in alternative practice can help to deal with one layer of anxiety afflicting clients: by not taking all their money.
• Direct access. Dealing directly with the client, within the scope of the public access rules, rather than by using the traditional client-solicitor-barrister relationship to keep the client at arms length, directly contradicts traditionally accepted principles of detachment.
• Demystification. The explanation of procedural and legal points clearly and in plain English so that the client understands exactly what is happening at every stage of the case. Alternative practice necessarily implies a commitment to demystification and education. The law should be explained to clients, as far as possible, in understandable terms. This follows the Benthamite tradition and undermines the normal practice of preservation of the mysteries of the craft. This is more fully examined in Chapter 6 (Mystery).
• Education. Sources of law and procedure should be made available to the client. Textbooks and articles in journals should be made available for reference or loan. Library facilities and Internet sources should be identified. Handbooks and guides to law and procedure can be published and distributed at a fair price. Education should also include an element of scepticism as to the effectiveness of the legal system in solving people’s problems. The analysis and identification of the non-legal aspects of the problem may be more significant than a legal analysis. The limitations of law should be accepted and explained.
• Professional standards. Practising law in an alternative way should involve setting standards higher than those of mainstream practitioners. The running of an alternative practice necessarily involves conflict with the principles and practice of the mainstream, especially with its obsession with money. One way of dealing with this conflict, and of asserting the principles of an alternative practice against the traditionalists, is to do everything better than them. Thus, administration should be as efficient as possible, with support staff highly trained and motivated. Standards of literacy, research, timekeeping and communication should be of the highest. The result of this should be that mainstream practitioners cannot criticise the alternative practice on grounds of poor standards or inefficiency. Disadvantaged clients should receive better service than if they had bankrupted themselves in the mainstream. Academic excellence should be one aspect of an alternative practice.
• Professional codes of conduct should be strictly adhered to, although this may cause difficulties where the aims of an alternative practice conflict with those of the traditional profession. But if an alternative practice falls foul of professional rules, for example by refusing to represent fascists, it is in a far stronger position to defend itself against charges of professional misconduct if it has an unblemished record of efficiency and good administration. The general test should be that every document which goes out from an alternative practice should be considered, in theory, as if it were to be examined and analysed by the most reactionary judge. If the documents are beyond criticism from the viewpoint of efficiency, literacy and administration, then problems with the content of documentation can far more easily be dealt with.
• Equal opportunities. The Bar Code of Conduct states that a self-employed barrister must have regard to any relevant guidance issued by the Bar Council including guidance as to good equal opportunities practice in chambers in the form of the Equality and Diversity Code for the Bar. The Code and the Guidance deal, generally, with discrimination on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, age, religion or belief. An alternative practice can go further than this and deal with the issue of discrimination for social and economic reasons.
• Seminars. Practitioners must comply with continuing professional development requirements, involving a set number of hours. These can be fulfilled by holding seminars. There is no reason why clients cannot be invited to seminars where the topic under discussion relates to their own problems. Unfortunately, the authorities now charge for accreditation of seminars, whether or not an entry charge is made, and this makes holding free seminars problematic. Again, the free market dominates. Since compulsory continuing legal education was introduced for all barristers, we have seen a scramble to turn this into a money-making opportunity. All kinds of individuals and institutions offer training courses to comply with the new regulations, at a high price. The progressive lawyer should, in any event, have kept up to date with his speciality, so that he can take on traditional lawyers on equal or better terms. Seminars, which count towards the continuing education requirements, can be offered free of charge and open to the public. In this way, free advice and information can be offered without any element of the patronising charitable ethic.
• Recruitment. The difficulties of running an alternative practice show themselves when attempts are made to recruit new members. Many lawyers are so immersed in a professional culture which has the unchallenged characteristic of an obsession with money, arrogance, formality and authoritarianism that they simply cannot cope with a practice which puts these factors at the bottom of its list of priorities. A practice which is determined to function according to broad principles of co-operation, justice and accessibility faces huge problems when it attempts to recruit from the mainstream.
• Website. My free employment advice website – www.freeemployment advice.co.uk –operated to provide free or low cost advice for people with employment law problems. It contained information on a number of areas of employment law and offered advice by telephone or email. The initial telephone or email advice, if brief, was free. Further advice was available for a small fee. A standard charge of £100 was made for an initial conference, regardless of its length. The website received, on average, 10 requests a week. Many of the enquiries were clients driven into mental illness by their workplace experiences and by the cost, delays and complexity of the legal system. They had started down the civil procedure road confident that they would obtain justice. As the case proceeded, their optimism changed to bewilderment and disillusion. Their savings disappeared. These were people with a partial grasp of the details of law and procedure, obsessed with the fine detail of their case, doomed to wander the obscure byways of English law and procedure until their money was gone, their spirit broken and their illusions as to English justice shattered. Their initial naïve belief that they would get justice or have their day in court soon disappeared.
Typically, the enquirers were unemployed, poor and desperate. Many of them had been dismissed or made redundant. They might complain of discrimination, bullying and harassment. They might have been made ill by workplace conditions. One thing which almost all of them had in common was that they could not afford advice and/or representation through the mainstream legal profession. Most were not members of a trade union, nor did they have legal expenses insurance. Many had approached the Citizens’ Advice Bureau for help and some had contacted Law Centres, only to be told that they were fully occupied and could not take on any more cases.
The majority of enquirers had some idea of their employment rights but most became lost in a fog of incomprehension and despair as they discovered how complex and opaque the law is, and how difficult it is to deal with procedural points. In almost every case, the root of the problem was money.
Working with these clients for free or for a small fee is difficult. The facts are often complex and may involve detailed allegations of bullying or harassment over long periods of time. Medical evidence is normally crucial and expensive to obtain.


Poverty and the Law

Examples of poor clients who have been denied justice

Redundancy
Practice as an employment lawyer currently involves an increasing number of redundancy cases. Typical matters involve workers who have been made redundant, or threatened with redundancy. They have families to support and mortgages to pay. They have no wish to spend their limited savings on lawyers’ fees. The law relating to redundancy is complex, and it is very difficult for redundant workers to be able to pay to discover the extent of their rights or the possibility of enforcing those rights.

Homelessness
Money is the key factor leading to the repossession of homes and the eviction of families. The non-payment of rent or mortgage instalments, purely a financial issue, is the basis for legally-enforced homelessness, for putting families in the street.

Personal injury
• A litigant in person, seriously injured in a workplace accident, not a member of a trade union, living on borrowed money, was told by a judge that he had plunged alone into the icy waters of the English civil procedure system and that he was unlikely to float. He persevered, with some “pro bono” help, and struggled through the preliminary stages of his claim. A week before the trial, having coped with the bullying tactics of his opponents’ solicitor and barrister, he was told that the trial could not go ahead because no judges were available. He had organised all his documentation. His witnesses included a consultant surgeon whose fee was £1000 to give evidence. This fee was payable whether or not the trial went ahead. The claimant collapsed with anxiety and depression and was declared bankrupt. The case died.
• A seriously disabled young man who was badly injured when a shop display fell on him. He had very little money and tried unsuccessfully to find solicitors who would take his case on a no-win no-fee basis. The local Law Centre was too busy to look at the case. He was forced to rely on a charitable lawyer who helped him through the preliminary stages. The owner of the shop admitted liability. Shortly before the case was due to be settled, the shop owner went out of business. He was not insured. The young man developed serious psychological problems.
• A young man, disabled from birth with talipes (club feet), slipped on a patch of ice outside a shop. The ice was caused by water dripping from plants outside the shop onto the pavement. The young man suffered a leg fracture with complications because of his disability. He was unemployed and had no savings. He had no legal expenses insurance. He was not a member of a trade union. Legal aid was not available for a personal injury claim. After spending several weeks in hospital he was advised that he might never fully recover and might never be fit for work. He approached a firm of solicitors which refused to take his case on a no-win no-fee basis because the chances of success were too low. Two other firms refused to take the case. They asked for £1000 on account to look at the documentation. The local Law Centre could not take the case because it did not have the resources. Self-representation was impossible because of the nature of his disability and his injuries. All the textbook information on the common law of negligence, and procedure in personal injury cases, was simply of no relevance whatsoever.

Employment disputes
• A waitress, a Russian woman living in London, who endured years of bullying in the restaurant where she worked, hoping to reach the age of 60 when she could retire with a pension. A year before her retirement age, she was sacked for being rude to a customer. Her local Law Centre would only act on a limited basis and would provide advice but not representation. She represented herself in an employment tribunal claim for unfair dismissal. Her claim failed. She had good grounds for an appeal to the Employment Appeal Tribunal but no money for lawyers. The appeal never went ahead.
• A woman involved in an employment dispute who was told, on approaching a firm of solicitors, that she would have to pay £500 in advance for two hours’ work looking at the documentation in her case before the firm would decide whether or not to take on the case. For her, the figure of £500 might just as well have been £5 million.
• A client who was dismissed from his job as a skilled worker, whose union refused to back him and who spent most of his money on an unsuccessful employment tribunal claim. His appeal to the Employment Appeal Tribunal resulted in lawyers taking his pension fund to pay their fees in a hopeless case. He lost his job, his claim and all his money. He now works as a shelf stacker in a supermarket.

Unpaid wages
• Many contacts through the former free employment advice website related to unpaid wages. Typically, the enquirers were single mothers with unskilled or semi-skilled jobs who had been underpaid, or not paid at all, for weeks or months. They were in desperate financial circumstances. They had complained formally to their employers, without success. They were not members of trade unions. They had only a vague idea of their legal rights. Some might have contacted the Citizens’ Advice Bureau or other advice agencies.
• The legal position – that there is a right to complain to an employment tribunal for unlawful deduction from wages – or a claim though the county court – has very little practical relevance for these workers. Consulting a solicitor is out of the question because of cost. Often, a formal letter from a lawyer on headed paper will result in payment. But the cost of such letters through the mainstream profession means that this remedy is largely illusory.
• To some extent, the English legal profession can be seen as colluding with what can be described as a form of modern-day slavery in its failure to provide such workers with the means of redress. In recessionary times, these problems can only get worse, and lawyers will not help unless they are paid sums which are so far removed from unpaid workers’ resources that the remedy does not, in reality, exist.
• The solution is a national network of community Law Centres, properly funded and staffed, offering free advice on an open-door basis. The cost of such a network is minimal compared with, for example, the amount of tax avoided by large corporations and the financing of illegal and/or unwinnable wars.


Shrewsbury pickets: 40th anniversary

Shrewsbury pickets

In 1972, building workers held their first ever national strike for decent pay and health & safety at work. Five months after the strike ended, 24 trade union members were charged with offences allegedly arising from picketing in Shrewsbury in September 1972. They included individuals who were convicted of conspiracy and sentenced to imprisonment. Government files relating to the strike have been withheld from the National Archives even though more than 30 years have passed.
We call upon the Government to release all Cabinet minutes, documents, discussion papers, civil service notes, reports and telephone records produced from 1972 to 1976 by Government departments, agencies and prosecuting authorities relating to the strike, the building workers’ unions, the arrested pickets, the prosecutions at Mold and Shrewsbury and the subsequent appeals, as well as any other material pertaining to the case that fall outside the above time period.

The verdicts and setences in the Shrewsbury case can only be understood if it is remembered that, at the time, the Conservative government was reeling from its defat by the miners in the industrial conflict of the winter of 1972, A number of significant questions remain unanswered. First, more than three hundred union members were involved in flying pickets which visited building sites in North Wales during the strike. For some undisclosed reason, only thirty-one of those were arrested and evetually only three imprisoned. The facts behind this selection procedure have never been revealed.

Two police forces recommended to the Director of Public Prosecutions that no charges should be brought because the ringleaders could not be indentified. Later, after a speech by the Home Secretary urging that charges should be brought, thirty-one of the pickets were arrested at their homes. Of these, twenty-four were eventually tried at Shrewsbury Crown Court.

Those who have always held that the law is a weapon used by the ruling class to maintain its privileged position may find their view confirmed by what happened at Shrewsbury.s

The expense of vast numbers of police in the investigation, the nature of the charges, the choice of venue, the long lapse of time between the ending of the strike and the start of the investigation, the harshness of the sentences and the selection for long prison sentences of only those pickets known to hold strong political views – all this only makes sense as conscious political action by the state.