LASPO: we are all in it together
Recently the number of requests from individuals in need of pro bono assistance seems to have rapidly risen. I hear from colleagues that the situation is similar for other pro bono projects, and there seems to be a general consensus within the sector that when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) comes into force in April next year, things are going to get much worse.
It’s fairly obvious how legal aid firms will be affected: they’ll stop getting paid for a good deal of the work that they are currently doing. It seems likely this will lead to a loss of jobs in the fields of employment, immigration, education, housing and consumer law - to name just a few of the areas that are being removed from scope. There are further fears that these specialisms will not be able to attract newly trained lawyers and swathes of expertise will not be passed on for future generations. But what of the firms that practise outside these areas? Are they safe?
The recent Civil Justice Council (CJC) report on how to improve access to justice for unrepresented litigants acknowledges, in chapter 1, paragraph 1, that LASPO is likely to lead to a ‘substantial increase in those whose access to law is unaided by lawyers’. The Legal Aid Group puts the number of cases that will suddenly be without help at 77,000 in London alone. It could be described as an incoming tidal wave of unrepresented litigants - to what extent do firms without legal aid contracts recognise the impact this might have on them? An efficient court system surely benefits all - it seems to me that the incoming tide threatens to upset the system causing problems for lawyers across all practice areas.
Any case handled by an unrepresented litigant is likely to take longer to reach a final hearing - what with disclosure etc - than one where both parties are represented. I’d also suggest that the hearing itself is likely to take longer than if the statements of case and the evidence have been prepared by a lawyer who is trained to know what is relevant, and - crucially - what is not.
Surely, then, we can anticipate a noticeable increase in delays in the court system once LASPO comes into force? This is the same court system that hears commercial cases of all kinds so if it starts to take over a year (or, longer than it does now) to get a case listed for trial, surely this presents a problem for everyone? Couple this with the drastic cuts to court staffing levels and it begins to paint a bleak picture for the courts in the times ahead.
Additionally, as the tide comes in, the whole system might start to adapt to be accessible to litigants without legal training - could this undermine the need for legal services more generally? The current system was created for lawyers. To properly understand and navigate it, a high level of training and experience is needed. These high standards allow it to run relatively smoothly and with minimal delay. At the moment, judges aren’t responsible for offering legal advice to unrepresented litigants, and if the proper procedure isn’t followed there can be serious consequences. If, however, a large number of non-lawyers suddenly need to access the system, perhaps things will start to change.
Will judges adopt a more advisory role? Will it no longer be fair to use procedures like default judgment or strike out for late filing of documents? And if the system adapts to the pace of the unrepresented litigant, is it possible that commercial clients such as banks and insurance companies will devalue the services their lawyers can provide?
Some might say that we should have a system which is accessible to all, one where judges do all they can to help litigants and where extenuating circumstances are taken into account before imposing sanctions for breaches of procedural rules. But, what about the judge’s independence in the whole process? And what about the additional time it would take to deal with a case if the rules are relaxed. Judges don’t take an impartial non-advisory approach to be difficult and these rules don’t exist just to trip people up. The current system helps to ensure that cases are conducted as fairly, and as swiftly, as possible. But this system relies on highly trained lawyers (who know the rules) representing the interests of both sides. If suddenly the system changes to accommodate the wave of unrepresented litigants, it may well become more accessible, but surely this would come at a cost?
So, rather than this being an issue for legal aid firms and the pro bono sector alone, perhaps it is in the interests of all lawyers to do what they can to limit the number of individuals forced to navigate the system alone.
Lia Moses is a caseworker at LawWorks, a national charity working with solicitors to support, promote and encourage a commitment to pro bono across the profession
Comments
Welfare benefits and legal aid
Interesting article, but the one area that I don't think it covers is in relation to welfare benefits and legal aid. As you will know, this has been completely cut from the scope of legal aid, which will see around 120,000 people unable to access free legal advice as they can do currently when they experience problems with their welfare benefit claims or challenges to decisions.
What makes this decision even more perplexing is that we are also within some of the most wide-ranging and radical reforms of the welfare benefits system since Beveridge. To run through just some of these, we have:
* migration of 1.5million IB claimants to ESA currently happening;
* local housing allowance changes currently happening;
* Universal Credit from 2013 to replace key out and in work benefits;
* DLA transformed to Personal Independence Payment;
* local authorities to take over council tax benefit and social duns payments.
We know from past experience that changes of this magnitude will inevitably see incorrect decisions and unintended consequences, so it seems perverse that government has simultaneously made the decision to remove benefits from scope. The system of social security tribunals are intended to allow ordinary people to represent themselves, but the nature of social security law is of such complexity that success rates are far higher when a claimant has a representative to help prepare and present their case.
This is also in the interest of the tribunal, as unmeritorious cases can be advised not to proceed, additional evidence can be obtained and supplied in advance, arguments can be refined and submitted in advance also, and for people with learning disabilities, mental health issues and so on, the simple act of making an appeal or seeking a review can be daunting in the first place.
We already know that the Tribunal Service are struggling to keep up with the sheer volume of cases that are coming through to them and there are concerns about the speed of administration becoming even more problematic when welfare benefits advice is removed. At Lasa, we're already thinking about how we can assist more frontline agencies and their clients on welfare benefits, particularly those problem-noticing agencies, as well as looking at what role technology can play to assist with this. Whatever we do manage to achieve though, I predict quite challenging times ahead.
A deliberate undermining of rights
The steps the government have taken are a very deliberate attempt to prevent people accessing advice and assistance with Tribunal claims and a very deliberate attack on the not for profit legal advice sector. The sums spent by government on social welfare legal aid are so small that this can be the only logical conclusion. They believe they will save money by preventing claimants from bring claims to Social Security Tribunals. Similar attacks are happening in employment with the removal of employment legal help and legal aid and the destruction of employment rights and the introduction of fees for Tribunals and in immigration tribunals. This is a government that believes the rich should have the protection of the rule of law but the poor and those who help them should be undermined.
Pro bono - it's not plain English
Am I the only solicitor who really doesn't like the expression "pro bono”. Just about every other Latin phrase has quite rightly long been exercised from the legal vocabulary, yet this horror remains. Only lawyers understand it. Let's follow the advice of the Plain English Campaign and let's just call it what it is – free, or charitable legal advice. Let's stop guilt tripping lawyers into thinking that they all have to provide pro bono work [almost all of us do anyway as part of our daily work] – as if we're somehow morally obliged to do so. Do the professional legal journalists who write these blogs regularly write for charities free of charge? I thought not.
pro bono
Sorry, but there are many of us who understand your old latinisms, and I would be more sympathetic if you were recommending that the law should be expressed, outside of necessary technical terms, in language that made "Ignorance of the law is no excuse" (except now for Polish scrap dealers) a much more just assumption, thereby diminishing the need for your services somewhat. As a lecturer in languages, I would occasionally be asked (not by colleagues) if I could just translate a page or two; if the suppliant's circumstances warranted it, I would comply, otherwise I would point them to an appropriate alternative.
Substituting "free" may create the same situation as dogs welfare provision: since it is free to the receivers, many have ceased to have any consciousness, and may resent its being pointed out to them, that somebody else is paying for it. I'm not a lawyer but a linguist, and it is hard to find another term: charitable has religious overtones, gratuitous a second, pejorative meaning. Gratis (as also ex-gratia), though also Latin, has long been naturalised in the OED, as adj/adv.
As a (retired) member of a professional association/trades union which recommended that we should not do for free or as overtime work which would otherwise be available to unemployed colleagues, I have always refuted the idea that voluntary work is inherently a Good Thing, and government should stop expecting it except in cases where one cannot reasonably expect (on utilitarian grounds) the State aka taxpayers to step in (eg inordinately expensive treatments for a handful of unfortunate sufferers from rare illnesses). Any other suggestions?
Judges advising litigants?
The notion that judges take an impartial, non-advisory approach is seriously out of date. Since the rewrite of the CPR (and now the FPR) the judiciary have descended from those lofty heights with increasing frequency as they exercise their case management powers. They have collectively lost sight of their own role, which is to decide the merits of competing evidence and arguments. Now they also decide how each party should be allowed to advance his or her case, often ignoring the experience of the 'highly trained' lawyers involved, lawyers who, in these days of specialisation have considerably more experience and expertise in their field of work than do the judges.
If they now find themselves having to go even further inasmuch as they have to advise litigants in person on the law I for one will have little sympathy.