Wednesday, 24 June 2009

No win, no fee to end?

Much of the legal press picked up on the Conservative Shadow Justice Secretary Dominic Grieve’s comment at LAG’s ‘Legal aid at 60: bridging the justice gap’ conference earlier this month that if elected next May the Conservative party would decide to roll out best value tendering for police station and magistrates’ court work or ‘abandon it completely’. Less well reported were his comments on no-win, no-fee arrangements (NWNFA).

Grieve admitted that the Conservatives had first permitted such arrangements, but said that Labour’s Access to Justice Act 1999, which replaced personal injury in legal aid with no win, no fee ‘seriously went off the rails’. In a response to a question from solicitor Simon Foster about what the Conservatives would do about NWNFA if elected, Grieve said, ‘If I could see a way of removing no-win, no-fee agreements and introducing a contingency fund I would do it. I believe no win, no fee is a flawed system which has a gentle corrupting influence on the legal profession’.

In the last ten years there has been a large growth in personal injury cases funded in this way and to an extent they have succeeded in allowing many people who otherwise could not afford it to pursue their claims; but at a cost. Unregulated claims assessors were siphoning up to 20 per cent of a client’s compensation and there has been much complaint about shoddy work. The courts eventually ruled on the issue of the amounts the claims companies could charge and claims management regulation came into force in April 2007.

While it would seem then that the problems with claims companies have been largely resolved, the point remains that lawyers have a stake in the outcome of cases, leaving many clients without representation as their cases have merit but are either too complex or too risky to take on. Clients also might be advised to take settlements as lawyers do not want to risk losing in court. Grieve’s solution is a contingent legal aid fund (CLAF) and this is supported by the Bar Council and Citizens Advice, among others. Such a fund would be paid for by charging application fees and taking a percentage from the winnings in successful cases.

LAG has warned that such a system could not co-exist with NWNFA, as lawyers would cream off the better cases leaving those with less chance of success for the CLAF. It would seem Grieve believes this as well. The question is if he takes the reins of power next year at the Ministry of Justice does he have the determination to drive through the abolition of the current arrangements and replace them with a CLAF?

Friday, 5 June 2009

Proper evaluation of BVT 'vital' says Tory shadow

An All Party Parliamentary Group on Legal Aid was launched at a meeting in the House of Commons last Tuesday (2nd June). A packed meeting was chaired by Karen Buck MP who will also chair the group which aims 'to promote parliamentary and public understanding of the importance of the role of publicly-funded legal services as a pillar of the welfare state and in reducing inequalities in society'.

Legal aid minister Lord Bach spoke at the meeting. Welcoming the establishment of the group, he said it would 'promote understanding of legal aid within parliament' but he warned that 'the legal aid system has got to be sustainable and help as many people as possible. This involves tough choices if we are to keep legal aid within budget'. This comment seemed to be aimed more at his shadow minister, Henry Bellingham MP who was sitting by him, than at the audience which was composed mainly of legal aid lawyers angry at government cut backs. Bach also reiterated his message about 'rebalancing money towards social welfare law as the legal aid system should be there for the people at the bottom of the pile. I don’t think it is practical to ask to double the budget'.

Roy Morgan, chairperson of the Legal Aid Practitioners Group (LAPG), argued that the move to reduce face to face advice in police stations would lead to miscarriages of justice. Morgan echoed the concerns of many in the room about best value tendering (BVT) for police station and magistrates' court work when he said: 'Why is this reform necessary now? Why not, as promised, have a pilot followed by an evaluation? Instead of just evaluating the tender process?' Interestingly, Morgan seemed conciliatory in tone towards Lord Bach, saying he believed he was listening to practitioners' concerns but the Legal Services Commission (LSC) was not.

Bellingham had said in his speech: 'It is vital that BVT has a proper evaluation.' Clearly then, the pressure is on the government from all sides to think again on BVT or at least carry out a proper evaluation before rolling it out. LAG’s conference next Thursday (11th June) will give an opportunity to question Lord Bach again and to hear from Shadow Justice Secretary Dominic Grieve about the Conservative party’s plans for legal aid (see:LAG's website for more information on the conference).

There were many good contributions from the floor at the meeting from practitioners including Kat Craig from Young Legal Aid Lawyers (YLAL) who complained about there being 'so little to show for answering every consultation from the LSC'. In her view 'the current system does not allow for quality work'. Many speakers also paid tribute to the work of LAPG and YLAL in establishing the group.

LAG believes the group will act as an important conduit for informing MPs about developments in the legal aid world. LAPG and YLAL deserve much praise for getting the initiative off the ground as does Karen Buck MP, who is a great campaigner on access to justice issues in parliament. We’d warn, though, that the group will lose any influence if it is perceived to be dominated by practitioners and their worries about the impact of legal aid changes on their incomes, instead of focusing on the concerns of clients.

Monday, 1 June 2009

Reports from the audit trail … Number 3

On a wet Friday night last month some 200 residents of Peacehaven, a few miles down the south coast from Brighton and Hove, met at the Meridian Centre. They were in the community hall to hear an update on a last-ditch legal attempt to block the development of a controversial £300 million waste treatment plant.

According to John Hodgson, who leads a protest group known collectively as PROUD (or Peacehaven Residents Opposed to Urban Development), the site is going to be ‘the size of 17 football pitches’. ‘It is an industrial process and we don’t want it,’ he says. The plan is for the treatment plant to be sited in his town and on the edge of the South Downs, recently designated a national park. Southern Water expects it to handle 95 million litres of waste generated by 250,000 people every day, most of whom live in Brighton. The plan also includes a proposal for an 11km tunnel, eight feet in diameter, running from Brighton to the new site and passing directly under Peacehaven homes. ‘There is a burning resentment that the city of Brighton and Hove is literally tipping its rubbish over its neighbour’s wall,’ says Hodgson.

You can see a video-film about their fight – inelegantly dubbed ‘the battle of Poohaven’ by the Brighton Argus – as part of the Guardian’s 'Justice gap' series which is based on LAG's Access to Justice Audit ( Unfortunately (at least as far as those residents of Peacehaven are concerned), their attempt to challenge the development after a five-year campaign failed shortly after the film was shot. The High Court last month refused to grant them permission to judicially review East Sussex County Council’s decision to allow Southern Water to develop the site. The residents’ legal fight was backed by legal aid (although they had to pay a £5,000 contribution) but it was the threat of legal costs that prevented them challenging that refusal. ‘Our lawyers advised us there was no more legal aid available - so if we’d lost we would face the costs,’ Hodgson said later. ‘And they could have been as much as £50,000. We couldn’t afford that.’

Whether you characterise the actions of Peacehaven residents as NIMBYism (as some Guardian bloggers have) or not, the role of public funding in allowing locals to challenge the seemingly unstoppable combined might of ministers and developers urgently needs to be examined. It is not an area of our cash-strapped legal aid system that has been looked at despite a widespread concern about the lack of local accountability in the planning system. If the planning system fails communities, they are led to believe that there are always the courts. It is not as simple as that.

Even if campaigners are supported by legal aid – and that is a big ‘if’ - legal costs are routinely deployed to silence them. The High Court judge Mr Justice Sullivan, in his 2008 report Ensuring access to environmental justice in England and Wales, found that only the ‘very rich or the very poor’ could afford to fight environmental schemes – no news to environmental law specialists and campaigning groups such as Friends of the Earth.

Away from the as yet unspoilt rolling hills of the South Downs to the banks of the Mersey … the next stop on the audit trail was the North Liverpool Community Justice Centre situated in a housing estate in Vauxhall.

Do you remember those misty-eyed plans of New Labour to create ‘community justice’ courts in which judges engage directly with offenders, taking charge of their rehabilitation? The Liverpool project was based on the Red Hook Community Justice Center in New York and opened with some fanfare over four years ago. It cost £5.2 million to establish the pilot justice centre plus £1.8 million a year running costs.

On the day of my visit, Judge Fletcher explains how his court deals with the offending behaviour of his clientele, ranging from the 47-year-old chronic alcoholic ‘in his 32nd year of offending’, arrested for shoplifting £2 worth of ham, to the 15-year-old who has been before his court 30 times for anti-social behaviour offences. ‘The idea is based upon the judge being much more proactive and having a much greater say in a way that sentences are carried out as opposed to the judge just being the sentencer, just applying the law,’ he explains.

Crucial to the Community Justice Centre model was a single judge monitoring the progress of offenders, with onsite agencies so that offenders can be referred immediately to professionals who can deal with their addictions and housing problems – as well as involving the local community, seeking its views on particular problems and on appropriate punishment. The court has been a test bed for new approaches such as the Criminal Justice Act 2003 s178 which has given Judge Fletcher power to review community orders.

Judge Fletcher has been outspoken in support of what he calls ‘therapeutic jurisprudence’, talking about the value of the judge as ‘social worker’. ‘It is about trying to satisfy the public demand for a just result but at the same time doing that in a way which is actually responding to what the public really wants,’ he says. ‘That is not for the offender to be locked up for the rest of his life but it is that the man stops offending.’

Unfortunately, plans for future justice centres appear to have been quietly dropped. Apparently, they are a luxury we cannot afford. Tucked away in the recent green paper Engaging communities in criminal justice, ministers have ruled out future centres ‘in light of the costs involved’. The paper talks of other models, based on existing magistrates' courts, involving multi-agency working and ‘virtual problem-solving teams’. Whether ‘community justice’ will mean anything more than disaffected youths being forced to clear up blighted parks in high visibility with ‘community payback’ stamped on their backs, remains to be seen.