Body

Access to Justice Bill.

Main changes to the provision of legal services:

1. A Legal Services Commission (LSC) will be established, run by a board of directors appointed by the Lord Chancellor Its responsibilities will include developing, in co-operation with local authorities and others, local, regional and national plans, to match the delivery of legal services to identified needs and priorities
1. This is a fundamental attack upon civil liberties.
One of the first things a totalitarian state does to control a population is to remove the independence of the legal profession to remove any dissent.
There are only three traditional professions if you apply the strict definition that is the Law, the Medical Profession and the Church (although others have joined e.g. Accountants and others have lost control e.g. the medical profession).
The strict definition being that the group directly provides codes of excellence and polices the members to enhance the reputation of the group.
The body organising the profession must be policed by its own members and not controlled by outside.
It must be independent of any outside control.
Clearly when considering any rules it must have regard to the reasonableness of the rules otherwise the group as a whole will be brought into disrepute.
The word "professional" is now used in a loose sense in relation to all sorts of groups including social workers, teachers financial advisors etc. But I would question whether they are actually "professions" under the strict definition. Because in reality they are controlled by the government and other quasi governmental groups, such as local government authorities, and there is actually no specific constitutional reason why they should be independent to the same extent as the legal profession.
The reason why the profession needs to be independent of the state is not for the protection of the lawyers it is for the protection of the citizen. Indeed there are always lawyers in every state including totalitarian states who organise rules. In fact one of the problems is that the Law Society is such a broad tolerant church that there are plenty groups who perceive that they will personally benefit if they follow the trend, and remove the fundamental protection of the public of freedom of choice to enable selection of lawyers from those who are entirely independent of direct state control.

2. A kite mark for all providers will be developed. 2. This clearly indicates the true nature of what such "kite marks" are about.
They are in my view another tool of control operating in the manner of a "protection racket".
Why is it necessary to have such a system of control? What is the Law Society if it is not an organisation whose principal purpose is to police its members, to ensure that the service provided is a high quality service, of exceptional integrity so that the profession's reputation is retained for the general benefit of it's members and the public as a whole as opposed to the benefit of a few individuals or groups.
The rules are not restrictive practices for the benefit of lawyers. They are there to protect the citizen. Indeed the client lawyer privilege for example is the property of the client not that of the lawyer. So that if the lawyer wishes to breach a confidence without the client's approval for whatever reason, whether for personal gain or disgust, then it is he that has broken the rules and will suffer rebuke.

3. All lawyers, including employed lawyers, will be given rights of audience before the higher courts, subject to training or other requirements laid down by their professional body. 3. What is meant by the word "Lawyers".
In simple terms anybody who makes a living out of advising upon the interpretation of the law can be described as a "lawyer". But here what is being described is anybody that the government through it's appointed "quango" decides that it feels like being permitted to be a lawyer will be one. That is the executive will be deciding who will be a lawyer and who will not. It will be laying down it's terms on which they will be permitted to be such, which will be matters related to expediency including (but not limited to) matters of finance and not at all related to matters of justice.
The "professional body" will be subordinate to the "control" of the "kite mark".

4. Lawyers will retain their higher rights of audience if they move from one branch of the profession to another, or between employment and private practice. 4. There are already provisions for solicitors to gain rights of audience in higher courts if they want them and the Law Society has been encouraging such a step for years but there aren't many solicitors who want to be bothered to take up the option. It is often better to pass the batten on to counsel for many reasons it is a system that developed in the UK because of the density of the population and has many advantages. They don't have such a system in the States mainly because the population density especially in the early days wouldn't support it and I believe that is why many don't want it here.
I certainly do not believe the quality of advocacy certainly in relation to style would in anyway be improved.
The main reason for this proposal is of course cost.
At the moment the CPS has to instruct counsel rather than using their in house employed lawyers whether solicitors, barristers or even perhaps clerks.
One of the most significant advantages of the present system is that such counsel although they may be prosecution oriented have experience from seeing the other side of the fence when they defend and as a result they have a much more balanced and fair-minded approach.

5. The Bar Council and Institute of Legal Executives will be authorised to grant rights to conduct litigation, to their members. 5. I may be mistaken but aren't the Bar Council and the Institute of Legal Executives already free to seek rights to conduct litigation under the Courts and Legal Services Act just like anybody else but they have apparently as a result of majority decision decided not to.

6. Advocates and litigators will owe their primary duty to the court. 6. Well as I understand it both solicitors and barristers are officers of the court but at the moment their primary obligation is to look after within the law to look after the interests of the citizen.
Indeed this may be a principle which is frustrating to the courts, the executive, and even to the lawyer, but it is a fundamental principle of human rights, for the benefit of the individual citizen, to ensure that he has proper access to justice which is not inappropriately controlled by those who are in power for the time being whatever the reason

7. A Legal Services Consultative Panel (LSCP) will replace the Advisory Committee on Legal Education and Conduct. 7. Is this a change of name or is the executive/government going to nominate a sub committee from their newly created LSC. With any luck the LSC the CLS or the CDS will pay the extortionate commercially oriented compulsory course fees rather leaving the lawyers to do so out of their "fat fees" I don't think so!!!!!!!!!

8. There will be a new procedure for authorising more professional bodies to grant rights of audience and rights to conduct litigation, to their members. 8. What sort of new procedure? There is one already under the Courts and Legal Services Act and as far as I am aware there has been no serious application which has produced any serious additional approved group of "lawyers". Presumably because that act didn't produce the desired result from the executive's perspective of creating a new group of lawyers who are cheap and under executive control there will be a relaxation of standards.

9. The Lord Chancellor, in consultation with The four senior judges and perhaps the LSCP and the Director General of Fair Trading, will approve changes to professional rules affecting rights of audience or rights to conduct litigation. The Lord Chancellor will also be able to strike down rules when They are not in the public interest and replace them, subject to parliamentary approval. 9. Not in the public interest. Like the principle that the client's confidence is paramount because the "contract" is with the client not with the executive or it's agents, and the principle that the citizen has absolute freedom of choice in his selection of his lawyer, and that he should not have one imposed upon him whether by the executive it's agents or even the a renegade lawyer who is more interested in feathering his own nest than principles of justice.

Changes to the criminal courts include:

10. Magistrates' courts will take over responsibility from the police for executing warrants against fine defaulters and people who breach community sentences. 10. Well this tinkering and appears sensible but I'd want to know what the police probation service community service officers and the magistrates themselves think about the idea.

11. Lay magistrates will no longer sit as judges in cases committed to the Crown Court for sentence. 11. I presume this relates to magistrates sitting with a qualified recorder in the old "quarter session" first level Crown court session. If it is I believe it is an inappropriate modification, because whilst the process may arise out of the historical system of the "quarter sessions" being called by the justices themselves to deal with the more difficult cases, it is an occasion where magistrates have the opportunity of sitting in on the consideration of the more serious cases with a trained experienced qualified recorder and have therefore the facility of actual "on the job" training. Equally the recorder has the advantage of working with others of different disciplines.
If as I suspect this like all the other modification proposals are driven by a motivation of cost cutting I suggest it is inappropriate and indeed will create a need for more costly but less effective training.

12. Judicial review cases about a criminal matter, and appeals to the High Court by way of case stated can be heard by a single judge. 12. Again this seems to be more of a cost cutting measure than a consideration of justice.

Changes to the civil courts include:

13. In normal circumstances, there will only be one level of appeal. 13. Does this include arbitration's carried out at District Judge level and general hearings carried out at Circuit Judge level.
If the system runs out too early then it may increase the pressure on the Judicial Review system or reduce proper consideration of real issues as nobody is going to waste time and money going through lengthy appeal procedures unless there is something important to be considered fully.
To reduce the level to a single level in all cases will run the risk of creating too many injudicious summary decisions. Unless the level of appeal is straight to the top in which event the higher court will be overloaded and will not have the benefit of a filtering system at lower cost.

14. The requirement for leave to appeal will be extended to appeals heard in the county court or High Court. 14. This doesn't seem to me a provision, which increases access to justice a restriction to reduce the ability to seek access.
On the other hand if you happen to be the winning party you will improve your position but you could always be the loser next time and in any event nobody is going to appeal unless there is a good reason to do so. As I say this is just a measure to reduce pressure and cost to the government in providing a judicial system not a measure to increase access to Justice.

15. The Lord Chancellor will have the power to specify by order the routes of appeal which different types of cases should follow. The government has finalised its plans for appeals under the Woolf reforms. 15. This is yet another step where the executive/government is taking direct control over the judicial system. I appreciate that the so-called separation of powers is very much an illusion in many ways but generally there seems to be a passion for direct control from the executive/government at the slightest opportunity. Perhaps it's because when you obtain the power of government you simply want to use it.

16. The Master of the Rolls will have the power to direct that the Court of Appeal should hear an appeal that would normally go to a lower court. Lower courts will have power to refer exceptional cases to the Court of Appeal. 16. Is this part of the process of having only one level of appeal and the need to have leave to appeal in all cases.
The question is where would the applications for leave to appeal be submitted and how would the Court of Appeal know that there was a case that was sufficiently exceptional that it should hear. Unless there is a procedure apply for the Court of Appeal to seek leave to refer to itself.
Presumably such applications will be paper based ex-parte by the prospective appellant in a similar manner to a judicial review application for leave but I wonder whether in reality there will be a great deal of change.

17. The Master of the Rolls wall have discretion to determine the constitution of the Court of Appeal in individual cases, giving the power to list matters before one-, two- or three-judge courts. 17. Presumably this is a measure to speed up the process and as such it seems sensible.

Planned changes to conditional fees include:

18. The Lord Chancellor will be able to make regulations allowing conditional fee agreements in certain types of family cases, such as disputes over the division of matrimonial property. 18. I have already made my views very clear on the question of conditional fees. I'm wholly against them save to the extent the indemnity principle aspects of "costs following the event" should be removed.
I have no wish to repeat all that have said but the idea that this principle can be applied in the matrimonial scenario highlights all that is wrong with the concept.
It is already the case that where there is a partial conditional fee system in regard to the "prescribed fee" arrangements in civil litigation legal aid the representative has to win rather than compromise in order to get fully paid contrary to the wishes sometimes of the client. I thought the government wanted to encourage compromise and mediation n the matrimonial field.
All that will happen if the lawyer has to rely on winning to be paid is that while the clients might be wanting to settle the lawyers will be at each others throats aggravating the conflict on order to be paid.

19. The courts will be able to include any success fee and insurance premium among the costs it orders a losing party to pay to the winning party. 19. The only good thing about the conditional fee proposals is that losing insurance company funded cannot, after having dragged an individual citizen with limited resources, in reality underwritten by his lawyer, through the courts to obtain the inevitable result refuse to pay the citizen's lawyer supporting the citizen to obtain justice.
This is clearly a sensible proposal although it wasn't originally proposed and the defendant lawyers were against it.

Framework for civil work:

20. There will be a Community Legal Service (CLS). The LSC will manage the CLS fund replacing civil legal aid. 20. Effectively the government/executive through its agents and the treasury want to take direct control of the legal profession and remove the citizen's right to choose a lawyer from an independent legal profession.

21. The purpose of the CLS fund will be to secure the provision, within the resources available and according to priorities, of the most appropriate services for preventing, settling or resolving disputes about people's rights arid duties under the law, or for enforcing the outcome of those disputes, on behalf of people who could not fund them in any other way. The LSC will be able to use the fund to purchase any type of service within that definition. 21. The service will be imposed on the citizen rather than based on the demand for assistance from the citizen for help

22. Lawyers and other providers will need a contract or grant from the LSC to offer services under the fund. The LSC will have the power to make any type of contract, and to employ people to provide services to the public. 22. The primary duty of any lawyer in a democracy is to act in the best interests of the citizen within the law that is any contract is with the citizen not with any government agency.
This not the health service where the state is providing a health service for the public and buying services for the purpose.
There are fundamental differences.
As far as I am aware there is nothing preventing the government if it wants to employ advisors of the legal position which would be lawyers in the general sense of the word.
But the reality is of course there is a huge conflict of interest especially where as often is the case the defendant is the government or one of its agents including local government agencies e.g. social services, highways, housing, police, etc.

23. Cases excluded from funding under the CLS include negligence cases where the alleged damage is to property or the person, other than proceedings for clinical negligence. 23. This is yet another irrational example of the destruction of the one area of legal aid which in general evens the tables for the benefit of the citizen against huge corporations usually multinationals and the statistics show it is extremely rare for the costs of such proceedings not to be recovered from such large multinationals with the government in the case of injury to the person recovering in many cases more than the citizen himself in the form of recoupment of state benefits.
It seems that the government is still intent on removing this, the purest and most effective form of legal aid leaving the rump of the system, which they have o provide with great reluctance.
I find their attitude to put it at it's lowest "negligent" in the extreme.
Why are they driven to do this is it merely political dogma or are there some genuine reasons for their action and if so what are they.
Who is it that is driving this idea and what are their interests and motives.

24. The Lord Chancellor will set the fund's annual budget for civil and family cases, and have the power to set a policy framework for spending those budgets. 24. Cash limits.
Well for several years the real truth is that the expenditure on legal aid has actually been well below the allowance provided for.
The truth is you will not be able to control the expenditure on the remaining "rump" of essential "social" legal aid driven by misbehaving or possible misbehaving citizens in their families and by committing crimes by restricting the funds available.
A much more sensible approach would be to try and create a mutual respectful society where the unsocial behaviour became a much less prevalent trend.
You won't stop people misbehaving and causing problems by limiting the funds on such a basis. Indeed it might in some circumstances encourage expenditure up to the limit even if it wasn't necessary (on second thoughts their would be a warped campaign against the "fat cat" lawyers and the next year the budget would be reduced dramatically so that the funds would bear even less relationship to the need).

25. A funding assessment will replace the existing merits test. It will consider whether another type of service would be a better way of dealing with the case, whether the applicant could fund the case in some other way, and whether the merits of the case itself, in the context of the government's priorities arid available resources, would justify public funding. 25. So that there would be another system or systems of arbitration developing each with their own set of rules and creating a similar fragmentation that subsisted before the Supreme Courts Acts of the 1875 which rationalised everything in an attempt to override (admittedly with limited success) the Bleak House saga of spending years in court and then being told that you had gone to the wrong forum and you'd have to start again.
The structure of courts have developed from the nature of the situation and what ever you use to resolve disputes you end up with a similar structure because of the nature of the situation.
It is not to say that is not appropriate to think openly and flexibly of horses for courses. But perhaps a better way of improving the availability the genuine cases is to try not to encourage a culture of excessive expectations in the citizens as to their rights in the competitive culture. It will not make the problem go away simply to blame the "lawyers" or others being asked to sort the expectations out.
But what is a "lawyer" the truth is it is anybody who's occupation is to advise upon issues of law which can include and does include already CAB advisors architects/planners accountants employment consultants etc.

26. The LSC will retain a central budget for high-cost cases, funded on a case-by-case basis through individually-negotiated contracts. 26. Their should be only one contractual relationship that the lawyer and that is with his client subject to a condition in that contract that the client will not abuse the benefit of legal assistance.
But here we have a system where the government will impose upon the citizen a lawyer who has bid the lowest price but not the one who will necessarily provide the best service to the citizen, and indeed it may actually be that to provide the best service might be a specific reason for non selection if the lawyer is too effective in raising issues which are not perceived as being "politically correct"

27. In most family cases, except care, adoption and domestic violence. applicants will not be granted representation by a lawyer unless They can show their case is unsuitable for mediation. 27. There is one fundamental flaw in this cost cutting exercise of having one "lawyer" instead of three (a judge and representative for both parties). That is the mediator trying to impose a compromise on both parties is that the compromise will be likely not to be acceptable to at least one of the parties and probably both so that the mediator will end up being challenged by one if not both parties.
This is of course the reason why the first rule for any lawyer is not to act for both parties particularly when dealing with matrimonial relationships because of the obvious conflicts of interest.
The rule is not for the benefit of the parties but for the "lawyer/mediator" and to prevent satellite litigation/argument. In the popular view it is often attractive for both reasonable people to approach a respected "family lawyer" to sort out the differences to apparently resolve conflict but history is littered with "lawyers" whose careers in some cases have been destroyed by trying to act as unique "honest brokers"
However as I have say the motivation to save money in my view is misplaced and will in fact be likely to cost more both in human misery and in financial terms.

28. There will be power to establish a self-financing contingency fund, which would require successful litigants to pay an extra contribution to cover the cost of unsuccessful cases, or a litigation loan scheme. 28. The next logical position would be if successful litigants are not going to be dissatisfied with receiving a pyrrhic victory is that the will be seeking to surcharge the losing party so that the losing party will potentially end up being taxed for the generally bad cases.
In fact the figures are not likely to be high if they are confined to money only cases and are not being used for cash flow purposes. Because the success rate of pure money claims is generally very high and if the "profit" element of the benefit recovery is factored into the equation there is currently an actual profit to public funds in supporting personal injury claims. So that perhaps the DSS budget might like to provide a proportion of the moneys recouped to such a fund.

Framework for criminal work:

29. The LSC will manage. at least at first, the new Criminal Defence Service (CDS), which will replace criminal legal aid. The Lord Chancellor will have the power to set up a separate body to run the CDS. 29. So there is going to be a halfway house to a public defender office the idea being to play one "lawyer" against another to push the costs down below the actual cost which would have to be paid if a free standing public defender office were set up.

30. As with the CLS fund, most services will be provided under contract, usually at a fixed price. Contracts will cover the full range of services, from advice at the police station to representation in the Crown Court. High-cost cases lasting longer than 25 days will be subject to individual contracts. 30. When considering the criminal area, it is even more clear why it is necessary to have an independent legal profession where the language of contracts with the government or it's agents to provide block or individual contracts is wholly inappropriate, especially in the high profile political cases ("lasting longer than 21 days"). One of the most notable of course being the Maxwell trial, which is used an example where the popular view that somebody ought to have been found responsible when a court having carefully examined the evidence produced by the directly government funded prosecution preferred the arguments of the considerably cheaper indirectly funded defence. They then market it as "scandal" that they were not able to secure a prosecution despite the obvious "value for money" of the effective defence.

31. The government believes the CDS should be able to employ lawyers directly as salaried defenders, but must consider the public defender pilot in Scotland first before taking an action. A long-term approach mixing private and staff lawyer is favoured. 31. Well you can see why they want a mix because they want the "free enterprise lawyers" to subsidise the system from other business. The question is what other business. As in the case of the high street solicitors since the destruction of the non contentious base of conveyancing being operated at wholly uneconomic rates it is now proposed to destroy the substitute cross subsidy which is currently underwritten by the government at a minor expense and generates an actual profit in real terms to the public purse.
Whilst there is a public defender model in America it is under funded and is rarely used except for the mass "rough justice" end of the system

32. The courts will decide whether it is in the interests of justice for a defendant to be given representation under the scheme. This power could be transferred to the CDS. 32. This is one of the most questionable aspects of the present position it is contrary in my view to the principles of "natural justice" that the same court that decides the case also decides the level of representation in advance of deciding the case which smacks of pre consideration of the case and raises questions of the impartiality of the tribunal deciding the case indeed to use a fashionable expression such a procedure lacks transparency to say the least.

33. In time, defendants will only be able to choose lawyers with a contract. In high-cost cases, the choice will be limited to lawyers on a specialist panel. In certain circumstances, a defendant will be assigned a lawyer. 33. Well this needs to be read in conjunction with the next paragraph which I believe is all revealing when referring to the removal of the means test. It appears to me that it is not expected that anybody who has any influence or connections will use the under funded and over influenced defence system provided by the state as despite the regular use of the word quality the only real test of quality is results and reputation. Therefore those defendants that face real and difficult prosecutions won't if they can possibly help it use the state system

34. The means test will be abolished. The court will have power to order convicted defendants to repay some or all of the cost of their defence. 34. The reference to the removal of the means test is perhaps the most revealing of the comments in the whole summary for the reasons expressed in the previous paragraph.
As to defendants paying their own costs this is no more realistic than seeking fines off those who can't pay it sounds good to the voting public but is simply not practical in the majority of cases if people really had the money they won't use the second class system to be provided.