A very interesting speech by president of the Law Society Andrew Caplen.
Role of the president
So, what does the role of Law Society president involve? Well, there are probably four distinct parts:
Firstly: ‘Business as usual’ – the usual round of internal meetings; visiting and liaising with, listening to our solicitor members. As well as the normal engagements we have with government ministers, politicians and external stakeholders such as the SRA, the LSB and the LSC.
Secondly: those matters that Harold Macmillan, a past prime minister, would have called ‘events’. Things that just ‘happen’ – that you can rarely anticipate and need to move very quickly to deal with. Two examples: (1) the Wonga situation, where intimidating letters were sent purporting to be from a law firm; or (2) the recent political issue regarding the European Arrest Warrant. (3): specific things that are known will happen during a president’s year in office.
I am very fortunate so far as these are concerned because – as you can see – there are a number of specific events that have already occurred or are due to take place in the first six months of 2015:
100th anniversary of the commencement of the First World War, visiting the First World War battlefields, finding the grave of the first solicitor killed (Cyril Montagu Pope), and visiting again in October to lay a wreath at the Menin Gate the Commonwealth Law Conference in Glasgow next April which will be attended by Law Society/Bar leaders from across the Commonwealth the Global Law Summit at the end of February, co-sponsored by the Law Society along with the Bar Council, the City of London and the UK government, designed to showcase the value of our legal system.
Attendees expected from across the world, speakers include Ang Song Chee, Professor John Ruggie, Boris Johnson and Cherie Blair The 800th anniversary of the sealing of the Magna Carta. I will mention a bit more about that in a moment and a general election. The Law Society has produced its own manifesto of legal and justice issues that we consider an incoming administration should consider.
Presidential themes Fourthly, a president often chooses specific themes that he or she wishes to concentrate upon during his/her term in office. For me, these are equality and diversity, with a particular emphasis on social mobility to improve our engagement both with our members and stakeholders. This means a great deal of visiting, speaking with and listening. It also involves an important focus upon communications. One of my responsibilities is to ‘sign off’ all of the Law Society’s press releases – there are quite a few of them each week.
The question of access to justice
On 8 September 2014 I launched, alongside the lord chief justice, our ‘Access to Justice’ campaign with particular emphasis upon (1) the responsibility of government; (2) endeavouring to explain to a sometimes sceptical public why issues of access to justice are so important and (3) the responsibility of the profession – for example, in respect of the affordability of legal services and in the provision of pro bono activities.
The fact that next year is the 800th anniversary of the sealing of Magna Carta is a very opportune time to raise the issue of Access to Justice.
The Magna Carta
Lord Bingham described the Magna Carta as ‘the single most important legal document in history. The foundation for global constitutions, commerce and communities. The anchor for the Rule of Law’.
Let’s go back to pre 1215. The king could levy taxes at will. He was beyond the check. There were few – if any – limitations on his powers. It appears that he even had the right to sell widows and daughters of barons into marriages for his own financial gain!
In effect, the law served his will, not vice versa.
But King John had a rebellion on his hands. Not just emanating from the nobles but also from his ordinary subjects.
On 15 June 1215, on the muddy fields of Runnymede in Surrey, the Rebels and the King’s entourage came together to seal the Magna Carta. It was an important, a watershed, moment.
It would, however, be wrong to think that the Magna Carta was ‘the answer to all problems’. It was not.
It was mostly concerned with the rights of the barons, the nobles. And it was not in force for very long. Bad King John managed to persuade Pope Innocent the Third to annul it just weeks later.
The papal bull, which you can still see in the British Library, states that the Magna Carta was ‘null and void of all validity forever’ citing that it was ‘illegal, unjust, harmful to royal rights and shameful to the English people’.
But, it was a defining moment. Because, for the first time, it placed the law above the monarch. It is regarded as being the foundation stone in this country – and in a number of foreign jurisdictions – of the concept known as ‘the rule of law’.
King John managed to revoke it. But neither he nor the Pope could prevent the ideas that the charter had given credence to. That law should be the supreme power, not a monarchical or state whim.
That is why the Magna Carta quickly found its way back onto the statute books. In fact, it was back in force a year later, in 1216.
Since 1297 it has remained in force, although all but three clauses have been superseded and removed.
Perhaps the most important is Clause 39:
‘No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.’
The Magna Carta and specifically this clause has inspired people all around the world, serving as the bedrock on which many nations have built their constitutions. This is something that I have particularly noticed since becoming president and had the opportunity to meet a number of international bar leaders, for example, Lebanon, Albania, Brazil, South America – and as for the USA!
Next year will be a big celebration of the 800 years. It is the ‘hook’ behind the Global Law Summit. The Americans will be over here in force in June.
My view is that now is a good time to consider what the rule of law means and whether we need to do more to keep it alive in this country, our own jurisdiction.
Here’s a quote for you. It’s my own and free to use. ‘The rule of law is rightly regarded as being the foundation of any democratic society. But the rule of law is meaningless if there is no access to justice. It is pointless to granted rights if you have no way of enforcing them.’
Sounds like a good essay title actually. Followed by the word ‘discuss’! In fact, that is what I am going to endeavour to do now.
The rule of law
Unfortunately, I cannot give you a hard and fast definition of the rule of law, but there are some generally agreed principles:
laws should be accessible, clear, precise and open to public scrutiny
people should only be punished for crimes set out by law and not simply by the discretion of the state, the judiciary or otherwise
courts must be accessible, affordable and cases should be heard without excessive delay
all people should be treated equally unless objective differences justify otherwise
there must be a respect for human rights
and, of course, the state must abide by both its internal laws and it’s international obligations.
In brief, the rule of law limits the power of the state and guarantees us our rights, as well as the means to seek redress if such rights are infringed.
Access to justice
Does adequate access to justice just mean that there a fair and independent court system should be made available? Or rather that, not only should the system exist, but citizens must be realistically able to utilise it?
To me the answer is obvious. If people cannot access the legal process, the courts, then they may as well not exist.
When I was a law student, I was very soon introduced to ‘the man on the Clapham omnibus’. That reasonable, very average, person who first made his appearance in Lord Justice Greer’s judgment in the 1932 case of Hall vs Brooklands Auto-Racing Club.
Say we were to explain to him the concept of the rule of law. His reasonableness would undoubtedly lend itself to agreeing with the concepts behind it – equality, justice and a state limited by law.
And then, say, we explained the current situation in England and Wales. Where everybody is still equal before the courts but due to recent devastating changes to the legal aid system, hundreds of thousands (the estimate is 600,000 in the last 18 months) have no realistic means of obtaining legal representation, with the result that many are faced with either representing themselves or simply not pursuing justice at all.
And then, let’s suppose, we ask our reasonable man – who by this time has likely got off the bus and begun hurriedly walking away to escape this series of bizarre questions – whether he believes having equality in the courts, but unequal access to representation, still means we live under the rule of law?
I expect he may say that unequal access to justice has the same effect as inequality before the law. What do you think?
Let me give you an example of the moment. Real people with real problems.
Domestic violence is a big problem in this country. Its continued prevalence is extremely disturbing.
If a victim of domestic violence separates from their abusive partner, they may need legal advice on a wide range of issues. In particular, they may need a non-molestation order to protect them from further abuse.
Legal aid is still available for victims of domestic violence. It is one of the few areas where it is.
But the thresholds that need to be satisfied before victims can obtain legal aid advice and assistance – and representation – are, in our opinion, much too high.
For example, joint research carried out by the Rights of Women, Women’s Aid and Welsh Women’s Aid has found that half of the respondents – respondents who had suffered domestic abuse – did not have the prescribed evidence enabling them to obtain legal aid.
They might not have had this evidence for a number of genuine reasons. Victims do not always speak out at the time. They are often too scared, too isolated or too ashamed.
Or perhaps the violence was not physical but rather psychological.
The same research found that 60 percent of those who could not access legal aid took no further action and have thus been unable to access justice.
What has caused this?
Cuts in civil legal aid
The Legal Aid, Sentencing and Punishment of Offenders Act in 2012 (otherwise known as LASPO) came into effect on 1 April 2013.
This Act ‘took out of scope’ a number of areas of law that had previously been covered by the legal aid scheme, with the result that we now have a chronically underfunded legal aid system. Vast numbers of legal areas are now either not covered or the entry hurdles so high that fewer and fewer can be assisted.
Statistics; according to the National Audit Office’s recent report, approximately 300,000 matters were funded by civil legal aid in the first 12 months of LASPO.
That is significantly less than the matters that the Legal Aid Agency would have expected to fund pre-1 April 2013, significantly less than the 685,000 matters that the Legal Aid Agency would have expected if the reforms had not gone again.
This means that citizens have either had to choose not to pursue matters at all, or to represent themselves as ‘litigants in person’.
Litigants in person
Figures issued by Cafcass for disputes involving children show that prior to the LASPO cuts 22 percent of cases began with both parties being represented. After the cuts that have shrunk to just four per cent.
Conducting your own argument in court is not, of course, prohibited. But it is generally seen as being beneficial to both the courts and litigants for all parties to be legally represented.
Why is this? Three main reasons:
Because of a litigator or advocate, whether a solicitor or barrister, is legally trained. Both the substantive law and court procedures are complex.
It helps keep in check high emotions. Something which, I am sure you will appreciate, are particularly likely to come to the fore in family cases, where it can often be difficult to separate strong feelings from what is appropriate or acceptable from a legal perspective.
And thirdly, because they risk the quality of the hearing. I’ll give you some examples:
Sometimes it can be difficult to appreciate exactly what evidence and legal points are relevant and what are not. Irrelevant issues may be raised and important ones missed, risking unfairness in the final outcome. Hearings become longer because judges need to spend time explaining procedural issues to the unrepresented parties.
Litigants in person are much more likely to submit incomplete documentation or fail to follow the required procedural steps. They will have to rely upon the judge to an extent that could raise concerns as to the appearance of bias. Cases are more likely to proceed to a fully contested final hearing as there is no advice from Solicitors as to what is a reasonable basis upon which to settle the matter. In the recent family case of Q v Q, the father was a convicted sex offender who sought contact with his child. Experts were instructed to advise the court on whether he posed a risk to that child. But, because he was ineligible for legal aid, no funding was available for those experts to attend court to give evidence. So the case ground to a complete halt. An additional difficulty was that the father did not speak fluent English. In the absence of legal aid, there was no money available for the translation of court documents into his own language. The president of the Family Courts Division felt that he could not proceed with a fair trial and was forced to adjourn.
The Law Society is not against a merit-based legal aid system. Nor are we suggesting that the government should sign a ‘blank cheque’. It is clear, however, that the current system is not working.
The Residence Test
This is another issue.
The government intends to introduce a ‘residence test’ to restrict legal aid advice and assistance to those who have been legally resident in the UK for 12 months. The major issue here is not so much the test itself but that, just as with domestic violence matters, the thresholds and number of bureaucratic hurdles that have been created.
Homeless people or the mentally ill or may have serious difficulties in obtaining legal aid due to this test.
When it was first introduced there were insufficient safeguards for victims of human trafficking. They, by their very nature of having been trafficked into the UK, are not legally resident here. Fortunately, after various organisations lobbied, including the Law Society, the government did grant exemptions to trafficked people.
And thankfully again, the residence test has recently been struck down as being unlawful by the High Court. We understand that the government intends to intend to appeal against the decision. The Court of Appeal hearing is likely to be heard sometime next spring.
Judicial Review changes
And another. Judicial Review – or JR – is a legal procedure by which the government and other public bodies can be held to account. It is generally regarded as being a key provision enabling the upholding the rule of law.
An initial application has to be made to the High Court for ‘permission’ to apply for judicial review. If permission is granted, then there will be a further ‘substantive hearing’ at which both sides present their full arguments. If permission is refused an application for renewal can be made.
Applications are made in the High Court against decisions of public bodies that are:
– either illegal – that is, ultra vires – where public bodies purport to make decisions that are beyond their legal powers or
– irrational – this test is often referred to as ‘Wednesbury unreasonableness’ following a leading case against Wednesbury Council or
– procedurally unfair – this was the basis of the successful challenge brought this September against the Criminal Contract Tender proposals on the basis of inadequate consultation.
Legal aid and Judicial Review
The government has expressed concern about the increase in a number of judicial reviews -, particularly in immigration cases. Because of this, they have sought to reduce the number of applications – by making them more difficult.
Solicitors will now generally only be able to claim their costs for the permission stage if permission to proceed is subsequently granted. Given the often unpredictable nature of judicial review applications, Solicitors may now take the view that they are not in a position to incur the financial risk in taking on such cases. We are hearing anecdotally that this is already happening.
The changes to legal aid funding for judicial review seem to particularly bring into view a state-led challenge to access to justice as we enter this Magna Carta year.
The Law Society are providing some adverse costs funding to an organisation known as the Public Law Project. They have brought judicial review proceedings against the judicial review funding changes. Permission has been granted and the substantive hearing is listed for later this month.
The title of this talk is, of course, ‘what use is the rule of law if there is no access to justice? My argument is a simple one. Without access to justice, the rule of law is nothing more than a concept, an ideal.
The 800th anniversary of the sealing of the Magna Carta is an extremely opportune time to consider this. There will be extended celebrations next year. Many international guests will visit England.
But it does this country no credit if Abramovich can afford to fight his cases in our Commercial Court and yet ordinary citizens cannot afford to access legal services when they have housing or matrimonial or welfare benefit problems due to the high cost of legal services or their inability to obtain legal aid.
I would like to return to the three main points driving the Law Society’s ‘Access to Justice Campaign.’ You will recall that they are:
The responsibility of government, hence why we are accumulating evidence of injustices post LASPO to assist in petitioning for some of the worst changes to be reversed.
Endeavouring to explain to a sceptical public why issues of Access to Justice are so important. The next General Election will, like many before, be fought on the battlegrounds of the economy, Europe, health and education, education, education. Justice issues are surely just as important.
The responsibility of the profession. To make our services more affordable, to engage in pro bono activities. Because to quote King Solomon, we are called to: ‘Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly, defend the rights of the poor and needy.’