Access to Justice – Justice for All?
Around 500 people were present at the Bar Council Conference on Saturday which has been judged a great success. The keynote speech was delivered by Sir Nicolas Bratza, following the opening address by Chairman of the Bar, Desmond Browne QC.
Desmond Browne’s speech, if you haven’t heard it or read it is worth reading.
I do no more…for it is not necessary… than to quote a few choice extracts…it is an excellent speech, meaty, direct and to the point. Food for thought.
In the past few months the Legal Services Commission has been at great pains to have us “celebrate” legal aid’s sixtieth birthday. But once the candles on the cake had been blown out, it was clearer than ever that we had been left in the dark. In all the party euphoria the Commission generated, it overlooked those fundamental principles which govern a social democracy’s obligations for the welfare of its citizens. These principles were espoused especially strongly by refugees from fascism reaching our shores in the late 1930s. Today, more than ever, at a time of deep economic recession and confronted by laws of ever-increasing complexity, we need to remember those principles – and be sure that we apply them in practice.
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Family Legal Aid:
There is wide recognition that effective legal representation is particularly critical in family law cases. Indeed, over 20 years ago in Airey v. Ireland [1979] 2 EHRR 305 the European Court treated as a breach of article 6(1) the refusal of legal aid to a woman seeking judicial separation in the Irish High Court, because of the complexity of the proceedings, the need to examine experts and the emotional involvement of the parties. Obviously these factors will be present in many, many family cases, and they require experienced advocates to deal with them.
Criminal legal Aid:
Turning from family legal aid to criminal legal aid, we can only conclude that this is a government which will never learn. As Disraeli once said: “you can tell a weak government by its willingness to resort to strong measures”. The very omissions for which the LSC was so harshly criticised in relation to family legal aid have been repeated all over again – this time by the Ministry of Justice in relation to the cuts in criminal defence fees proposed in their Consultation Paper of 20th August.
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The betrayal of the ideals of 1949:
There is every reason for the profession to feel betrayed, but what matters is that the public has every right to feel betrayed too. We are now heading for precisely that which the midwives of legal aid wanted to avoid – two standards of access of justice dependent on the ability to pay. When the wolf is at the door, we can no longer be accused of crying wolf.
Desmond Browne then turns to consider Access to Justice and reflects on the future of the profession
In ending, I inevitably return to criminal defence fees. Swingeing cuts can have only one result — quality will be driven down as experienced advocates are driven out, Poor quality advocacy increases the chances of acquittal of the guilty, and (worse to my mind) conviction of the innocent. As the Lord Chief Justice said in his recent Kalisher lecture, “it really is as stark and simple as that.”
It would be a better speech, if he had acknowledged how lawyers abuse the legal aid system.
James C…. does earning a lot from the Legal Aid scheme necessarily connote abuse? I don’t know the answer to that….
What I do know is that lawyers who don’t earn very much… sensible incomes which many in this country earn… not stratospheric private law amounts… are worried about justice and they, like everyone else, have careers and families to provide for.
the experienced solicitors at the law centre where i volunteer earn about half what a pupil barrister gets at a decent commercial set. the law centre is in danger of closure because they simply can’t rack up enough chargeable hours to pay the running costs. i can bill about 12 minutes for a letter of advice. and i’m typing that myself.
that’s abuse. i have no problem with barristers getting a fee for their work. those of us with the desire to do that kind of work still eat.
the only way we can have a sensible legal aid system is to fund it by a straight percentage levy from all law firms taken at source from profits.
Thanks for this. I’m writing a paper on the transformation of access to justice at the moment. It is quite bizarre as we spend more than anyone else but get so little for it?
JF,
Is the reason not obvious, which is that the LSC is incapable of preventing unnecessary costs from being incurred? The result is that the bill for legal aid grows until the government decides to slash hourly rates or deny access.
to be fair, the lsc is quite good at preventing necessary costs being incurred, so if they let slip a fe unnecessary ones, it is only to be expected.