On 12 November I stood in a muddy field in Runnymede and listened to the great and the good, including justice secretary Ken Clarke, hail the Magna Carta as the foundation of fundamental rights and the protector of human freedom and civil rights. Chief among those rights are equality before the law and access to justice.
Three days later I watched with increasing dismay as Clarke stood up in parliament and proposed to take some of those protections away from some of the UK’s poorest and most vulnerable people.
Are these proposals driven by a determination to reduce public expenditure, or by an explicit desire to challenge the values which have underpinned our rights for the last 800 years? Equality before the law means equal access to it.
The two green papers currently out for consultation include proposals for the removal from scope of whole areas of work, new financial thresholds for legal aid and, combined with the government’s response to Lord Justice Jackson’s proposals, mean that many people across England and Wales will be denied access to the justice that is due to them.
These proposals cannot be wrapped up in language about addressing the ‘culture of litigation’. Vast swathes of people will now have no protection or redress in areas like housing, health or employment.
Particularly troubling for me is the suggestion that clinical negligence can be removed from scope. Many of you will know that I am a clinical negligence specialist. I have seen for myself clients coming to me in the most desperate situation – a longed-for child needing a lifetime of 24-hour care with very little support available from the state; or a mother with young children facing a life without her husband and financial ruin.
These are not fanciful examples. They are typical of the sort of situations that people will find themselves in and then be denied access to justice and the ability to seek redress through an impartial and independent legal system.
Yet these cases are vital, not only to ensure proper financial support for patients whose lives have been blighted by negligence or accidents, but also to ensure that lessons are learned and to continue to drive improvements in patient safety.
I am also extremely concerned about the suggestion that education is to be removed from scope. Parents need help challenging local authorities about certain decisions which affect the whole of their children’s lives, particularly if, as is often the case, these children have particular or special educational needs.
If the state makes the decision not to fund legal action, then some other way must be found for people who cannot afford it.
No win, no fee agreements have been successful in opening up access to justice. Success fee levels are overseen by the court which, in the event of disagreement, determines the appropriate fee in each case, and on the basis that the riskier the case the higher the success fee. However, there is little transparency in how the levels are set.
Lord Justice Jackson’s recommendations are intended to reduce legal costs and the amount of litigation, which will have obvious implications for access to justice. He also suggests that before-the-event (BTE) insurance should be made widely available. Sadly, many of the people directly affected cannot afford or do not appreciate the need for this type of insurance.
There are very significant difficulties in the way in which legal expenses insurance is currently run: people do not have the freedom to choose their lawyer; there are concerns about the ways in which insurance companies select panel members; and the cover that companies provide is not always appropriate. All these issues will need to be resolved if BTE insurance is to become more important.
From now on we have a choice. We can choose to reaffirm and strengthen our professional determination to protect access to justice, or we can choose to retreat to the narrow vision set out two weeks ago, which risks limiting access to justice to a small minority of people.
For me, there is no choice. My professional and personal commitment to upholding access to justice and the rule of law means that I will continue to fight to preserve the principle of access to justice.
Equality and justice are not meaningless words. They mean something to everyone in a civilised society. Unfortunately, we are now in a position where we have to fight for them; the vulnerable demand our protection.
I cannot do it alone, and I cannot do it without evidence. I am hoping that the profession will join me in making its views clear to government. I am asking all local law societies and individual law firms to become involved in the Law Society’s campaign to protect justice, to write to their MPs and speak up in support of our efforts to uphold the rule of law and equal access to justice.
I believe that this really is a process of genuine consultation; that it is not a done deal and we still have all to play for. We have an opportunity to make our voices heard.
In this case, size really does matter. Civil servants will look at the volume of responses they receive rather than who those respondents represent, so please write. The more letters the government receives the more it will take notice of our concerns.
Let’s make it clear to politicians – their proposals will have devastating consequences for access to justice and we will not stand idly by and let that happen.
Linda Lee is president of the Law Society
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