Tuesday, 14 May 2013

What price justice, Mr Grayling?

One day very soon we will see Chris Grayling's dystopia for legal professions come into being.

We've already seen massive Legal Aid cuts. Lost amongst the Daily Mail crowd-pleasing headlines, such as cuts to prisoners' Legal Aid and cuts to Legal Aid available to immigrants, has been the real substance of the cuts: cuts to assistance in housing disputes, to family and divorce aid, to welfare appeal representation, to criminal injuries compensation assistance, to representation at employment tribunals, to help with education problems... Unless your case falls into very limited loopholes, you won't be able to get public funding to help you get a solicitor.

Then there's the cuts to Citizens Advice Bureaux. Many Bureaux across the country have been forced to shut their doors or limit their opening hours as public funding has been slashed. In times of economic hardship, it's been left to communities to fund those centres which help those most desperately in need of free legal assistance.

I hope you've noticed who those cuts really hit. Those in the most need. Those poor and destitute who need financial assistance to help them pursue justice.

If you're disabled and want to appeal against the decision to take away Disability Support Allowance, then tough. It doesn't matter that you might not be able to afford to effectively feed and clothe your family and heat your home; you're going to have to fund your case yourself, or represent yourself in the treacherous labyrinths of welfare law.

Or you've lost your job and want to claim unfair dismissal. You can't have Legal Aid. No matter that you've lost your income and it might not be your fault. Once again, you fund that case yourself or you represent yourself. If the choice is between justice and feeding your family, there's only one choice, and it's not the one that might see you get reinstated.

Even worse: your family is being ripped apart after your partner suddenly ran away with someone else. You want a divorce, but don't have any money after your firm went out of business after you'd worked there for only eighteen months. Again, you fund that divorce yourself. No Legal Aid is available.

Access to justice is something that Legal Aid was meant to facilitate. Its withdrawal leaves potentially millions with no option of going to court or arbitration for redress. It makes legal professionals inaccessible.

You've probably noticed by now that I've yet to talk about criminal Legal Aid. This is in no small part because publicly-funded criminal work is undergoing the most radical transformation of all. Unlike the areas of publicly-funded civil work, I'm an outsider looking in on the criminal 'reforms'. But I watch on with increasing horror as Chris Grayling's proposals look set to destroy the finest criminal justice system in the world.

Firstly, there's the proposals to contract criminal work out to a limited number of firms across the country. Firms will bid to secure Legal Aid contracts. Only 400 out of 1,600 firms will survive this process - possibly fewer. They who can do the work at the lowest cost will inevitably stand the best chance of securing the contracts. However it most certainly isn't the case that those low-cost lawyers will be the best options. It'll lead to corner-cutting as firms try to take on large workloads and keep costs low at the same time in an attempt to generate the biggest profits. The people who will miss out will be the clients.

Then there are the proposals with regards to advocates. You want the barrister of your choice to represent you at court? Tough. You'll be assigned someone who is assessed under the QASA scheme as being appropriate to the level of case you're assessed as having. Your choice of advocate will be taken away. I don't know about you, but if I was in trouble I'd want to be able to choose who represented me. I'd want to be able to talk to my solicitors about who would be instructed. And I'd want to be able to instruct someone else if I felt my barrister wasn't up to the task, or if I wasn't getting the advice I felt I needed.

Which brings me on to another issue: the tapering of barristers' fees. Somehow Grayling has got it into his head that advocates spin out proceedings, so he's suggested tapering fees. Under the proposal, a led junior in a complex fraud case would, at the end of a six-week trial, be earning £2.60 a day. What price justice? Barristers are human beings, at the end of the day. They share the same concerns with regards to finance as most people. If they know they're going to be paid a pittance for several weeks of work, they'll be worrying about how to make ends meet. What's their advice likely to be with regards to your plea, with that in mind? Forget the strength of the evidence. Forget your own protestations of innocence. Even forget the Bar Code of Conduct. Remember that they'll be getting paid £2.60 a day by the end of your trial, which is listed for six weeks. Their advice to you will be to plead guilty.

Is it the barrister's fault that they don't want to work for peanuts? No. And why should they? Their calling - a calling I wish to share - still needs to be founded on solid economic grounds. The Code of Conduct may force them to act fearlessly to promote your best interests, but how much weight does that hold when they're trying to hold a family together on less than £10,000 a year, working long hours every day?

This hasn't been reasoned discourse about the pros and cons of the Grayling proposals which will most likely become reality by 2015 (and which already are reality in relation to the civil matters). It's been my own view. I see injustice and inequality reigning in the legal system for decades if Grayling's reforms come to pass. I see good men and women walking away from the law because they simply cannot afford to continue to promote their clients' best interests, with the running of proceedings left to tinpot advocates from companies like Eddie Stobart. Above all, I see an incompetent arrogant man pushing through his personal crusade at whatever cost necessary, and if that happens to be to the detriment of what could be millions, then so be it.

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