Last month I mentioned how those abroad observe our work, paying particular attention to the independence of our profession and to the perceived balance and fairness found in our legal system, both criminal and civil. Their perception is built on the outstanding reputation of the judiciary, the trusted skills and expertise of solicitors and barristers, and the creation and existence of proportionate legislation appropriate to circumstance. It is easily forgotten that international reputation so often depends upon upholding domestic values.
In November, the House of Lords voted against proposals to extend draconian powers of confiscation enshrined in the Proceeds of Crime Act. These powers, originally intended for use against perpetrators of serious and organised crime, were due to be handed to a wide new range of agencies, including local authorities, the Department of Health and Transport for London.
That the Lords put their collective foot down was more than welcome. However, the motion was non-fatal so the regulations still stand. There is a fine line between protecting the liberties and privacy of individuals and the need to prevent and deter organised crime. That is why the Law Society accepted the use of confiscation powers in the first place, properly used and regulated by the courts. Extreme criminal activity calls for extreme measures, providing they remain under effective control and with appropriate checks and balances.
However, it is completely inappropriate to extend the use of these powers from police and customs officials to local councils or other similar agencies for use against fare evaders and parking miscreants. To do so without any proper or meaningful consultation is doubly so.
Can expanding the purpose of these confiscation powers from the deadly but narrow area of organised crime to the prosaic world of parking fines and bus tickets really be considered proportionate? I believe not. I also believe that it would be understandable were outside observers to conclude that there exists a fundamental failure to value the property rights which our society has long cherished and taken for granted.
One week after the Lords rejected the government’s confiscation proposals, the chancellor delivered his Pre-Budget Report to parliament. A central theme of his plan was the protection of so-called ‘frontline’ services – health, education, and policing – which are deemed essential to the maintenance of the standard of living that people expect. One feature not mentioned in the speech (though buried on page 110 of the actual report), was the government’s recommitment to saving money through the ‘reform’ of the legal aid system. ‘Reform’, of course, is a maddening euphemism for ‘cuts’.
To my mind, legal aid is no less of a ‘frontline service’ than health, education and policing. Indeed, if we are committed to maintaining an effective and efficient police service, it seems that guaranteeing the right to representation should be a necessary corollary. Any society built and sustained on the rule of law has to hold access to justice as a primary consideration. The fact that it is relegated to an effective footnote as a target for ‘efficiency’ savings suggests to me that this fact has been forgotten.
A fortnight before the chancellor’s speech, the National Audit Office published a report casting grave doubt on the sustainability of legal provision in England and Wales. Nearly a third of firms reported that they were unlikely to be involved in legal aid work in five years’ time. It is simply not the case that the legal aid system is the over-bloated leviathan that some claim, any more than legal aid solicitors are pantomime villains waiting to prey on the public purse. Yet there is without question a major gap between the way in which doctors, nurses, teachers and policemen and women are perceived compared with how legal aid solicitors are viewed. Of course, their work is no less valuable and their endeavour no less admirable.
Now that the Legal Services Commission has abandoned its dogmatic approach on best value tendering, there is a window of opportunity to review the entirety of legal aid provision in terms of both scope and procurement. Having done its part to secure that result, the Society has a concomitant duty to look beyond the immediate horizon and build a framework for a new beginning. However, politicians of all parties have to place access to justice at the same level of importance as health, education and policing for such a renaissance to be effective.
The right of every man, woman and child to healthcare, security and education is politically underscored because they are visible and they affect everyone. The same cannot be said for legal aid, but there is an equally immovable obligation to provide access to justice for every man, woman and child. It is only by recognising the right to legal representation as a non-negotiable frontline service that balance and fairness will be restored. Whoever does so may find that there is more to be gained than they may think, both at home and abroad.
The new year will offer many new opportunities and challenges. It will be a year in which changes to regulation, regulators and the whole legal profession will become ever more apparent. There is much for us all to do and it is appropriate to take stock in these pages next month. In the meantime, on behalf of everybody at the Law Society I wish you a very happy and prosperous 2010.
Robert Heslett is president of the Law Society