Access to Justice Day - breakfast speech by Law Society president Andrew Caplen
Good morning everyone and thank you for making time early on a Monday morning to come to Chancery Lane.
I would like to begin by expressing my thanks, our thanks, to the Lord Chief Justice for coming to speak to us this morning. We look forward to hearing from you shortly.
As many of you know, one of the major themes that I will be concentrating upon during my term in office as president is that of 'Access to Justice'.
Not that original, some of you may think. 'Access to justice' is a phrase often heard. A subject on which many have written, many have spoken and many have campaigned.
But then again - maybe that is the point! The fact that it is such a continually recurring issue leads to the inescapable conclusion that this is something which urgently needs attention.
My view is that there needs to be an joined-up public debate as to why it is so important. A debate that moves much wider than just a concentration upon the responsibility of governments via, for example, systems of legal aid.
Next year we will be rightly celebrating the sealing of the Magna Carta - the foundation for the rule of law in this country.
The value of the rule of law is immeasurable. It is one of the main reasons why our legal system remains so highly regarded throughout the world.
Access to justice is a fundamental corollary to the rule of law. Without access to justice, the rule of law is nothing more than a concept, an ideal. If it is absent, legal rights cannot be exercised and legal obligations cannot be enforced.
The Law Society's view is that that access to justice is under threat.
It is estimated that due to the changes implemented by LASPO - the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - up to six hundred thousand people have lost the ability to access civil legal aid.
Further, recent changes in the civil litigation costs regime have made lower value complex cases much less viable for solicitors to be involved with. Funding shortages have had the result that pro bono advice from organisations such as law centres, is becoming increasingly restricted. Some have even had to close.
That is why we are, today, launching our Access to Justice campaign.
We have three core goals:
- to raise public awareness of lawyer-aided access to justice issues
- to persuade policy-makers to consider legislative changes, particularly in relation to the provisions of both parts one and two of LASPO
- and thirdly, to explore innovative ways that our members can utilise in order to make their services more available to the public.
So, lawyer-assisted access to justice. We need to concentrate upon facts, not myths.
We are often told that we have the most expensive legal aid system in the world.
Yet England and Wales have a Common law legal system based on an adversarial process, rather than an inquisitorial one. Meaning that a larger proportion of the cost is directed towards the opposing parties' legal representation.
Even to compare the costs of our system with that of another common law jurisdiction can be misleading. A wide range of factors need to be considered: crime-rates, social inequalities, the level of family breakdown, even the quality of decision-making by public bodies.
Then again, it is often said that a 'compensation culture' has developed. Is this indeed the case? Or is it that citizens have a greater awareness of legal rights and an increased perception of the need for accountability? Is that not what we would want to happen?
Further, over the last 18 months or so, I have met with, spoken to, listened to many of our members who work within the criminal legal aid system. They are justifiably concerned at the changes both taking place and proposed.
Many have expressed their desire to me that a sometimes unsympathetic public should be persuaded to better understand the importance of what they did day-after-day, be it in police stations or in our courts. And so this is what the first element of our campaign will seek to do. To raise awareness of the importance of the role of lawyers within our justice system.
We will be doing all that we can to bring such issues into the public arena. Through events such as these, through a joined-up programme of press releases, articles, features and interviews. With a view to instigating this debate and supporting others already actively involved.
Pro bono legal advice should never be seen as a substitute for a properly funded legal aid system. But it is right to publicise the tremendous work that so many Solicitors do free of charge. Our best estimates suggest that nearly half of PC holders have undertaken some form of pro bono work during the last twelve months.
The Law Society will be highlighting such dedication.
National Pro Bono Week takes place during the first week of November. It is an opportunity to celebrate the contributions that so many lawyers make to the most vulnerable in society.
This year, in this respect, we will be launching a co-ordinated press campaign. We will be hosting a Question Time style event on domestic pro bono issues. Also a panel discussion on international pro bono work in light of our joint work with the Department for International Development.
During this year's pro bono week, we will be welcoming the Public Interest Law Network to London. This major, international conference will focus on the building of a global network for public interest lawyers.
As we all know, LASPO came into effect on 1st April 2013. It falls into two distinct parts - part 1 dealing with legal aid, in particular limiting the scope of matters covered by the scheme. Part 2 deals with changes to the civil costs regime.
I will deal with part 1 first.
The LASPO changes have had a marked effect on both individuals and the courts. There has been a large increase in litigants in person as for many their only option is to represent themselves. The recent case of Re B in the Family Courts Division has shown some of the difficulties that can arise because of this.
The Law Society is not against a merit-based legal aid system per se. Neither are we suggesting that the government should just sign a 'blank cheque'. But a number of the consequences that have flowed from recent changes do give cause for concern.
For example, thresholds are often too high.
The provision of legal aid for victims of domestic violence is a case in point. We know that DV issues are an increasing problem.
It is anticipated that 7 per cent of women and 5 per cent of men suffered from it last year alone. Recent research carried out by the Rights of Women's, Women's Aid and Welsh Women's Aid concluded that nearly half of those who had suffered domestic violence could not provide the prescribed evidence in order to obtain legal aid.
For a number of genuine reasons. The violence may have been psychological rather than physical. Perhaps the victims did not speak out at the time - they are often too scared, too ashamed, too isolated.
The same research found that sixty per cent of those who could not obtain legal aid for these reasons took no further action. That has to be a cause of concern.
During the next 12 months, the Law Society will be making clear to the government, this side of the election and next, that there should not be any further changes beyond addressing the difficulties that the outworking of LASPO has highlighted.
Part 2 of LASPO
It is our view that many of the recent changes to the civil costs regime have not necessarily succeeded in making litigation more affordable and accessible to the public. Which was, of course, their primary aim.
New cost and case management rules, qualified one-way costs shifting, damages-based agreements, the changes in respect of referral fees, the end to the recovery of after-the-event insurance premiums - these have all had the effect of reshaping the legal landscape.
We know there is work to be done here.
In addition to our wider lobbying and visibility campaign, the Law Society will be
commissioning high-quality research in order to analyse the impacts of the civil justice reforms. Specifically on the effects that we feel they might well have had upon access to justice.
We will also be organising a thought leadership conference on the changes, together with a new series of civil justice roundtables to discuss the impact of LASPO and what the next steps should be. We will also be examining options for other products that could assist members of the public in paying for civil justice legal services.
The third part of our campaign - to encourage and support our members in finding new and innovative ways to make their products and services more accessible to the public.
Some aspects of improving access to justice fall upon the shoulders of the legal profession. One way that we, as solicitors, can help is by some standardising of our services, by ensuring transparency around fees and by harnessing the technological revolution so that we are where many of our clients are - online.
There are a myriad of options out there for us to explore. Examples range from an expanded use of telephone hotlines, to web-based portals and the unbundling of legal services. So that clients with limited resources can purchase at least some aspects of legal advice.
The Law Society will continue to do its best to explore these options and assist to our members.
So that, I hope, gives you a flavour of the nature of our access to justice campaign. The Law Society's aim is to be involved in - and where necessary to lead - this all-important debate.
As I said during my initial remarks, access to justice is a necessary corollary of the rule of law. Without it we are all the poorer. Yes, a great responsibility to do all that can be done to protect and increase access to justice falls upon government. But it also falls upon the general public to recognise and support such issues. And also upon us as lawyers.
Thank you again for your attendance here this morning.