Fifteenth Letter to the Lord Chancellor,
Secretary of State for Justice,
Mr Chris Grayling,
25th April 2014,
Dear Lord Chancellor,
I read your article published in The Daily Telegraph on 20th April 2014 when you glowingly stated “We are lucky and privileged that we have one of the finest legal systems in the world.” Well, it is true that you inherited one. Let’s have a look at what the coalition Government has done with it.
The MOJ steered through Parliament the LASPO Act in 2012 which we now see in the last couple of years has had the following effect on family courts:
• There has been a 40% reduction in family mediation prior to court.
• The number of parties attending family courts has risen.
• More than half of all parties in child-related cases are now unrepresented in court.
• Separating and divorcing couples cannot get legal aid in most private family law cases.
• In a recent case, where no legal aid was granted, a mother was to be cross examined in person by the man she accused of raping her whilst they were in a relationship. His application was turned down for legal aid and so he represented himself. Judge Stephen Wildblood invited the Legal Aid Board to re-assess the application. They still refused him legal aid.
• Disputing couples are now extending their acrimonious confrontations into the courtroom.
In a splendid response the MOJ has had the excellent idea of drafting law students in to help resolve family cases. A network of centres has been proposed, to be manned by students offering legal advice and support. They will have had no experience and will not, of course, have passed their exams, but they’ll be free, and that’s the main thing. Simon Hughes MP, the family justice minister, for the MOJ published on 22nd April 2014 guidance for divorcing couples entitled Dispelling Myths. I hope the first myth he dispelled was: you are entitled to be represented by a qualified lawyer.
On the criminal law front I see that your amusing demonization strategy is working:
1. Those barristers and solicitors who do defend legally aided defendants are profiteering at the expense of the hardworking taxpayer.
2. Those barristers and solicitors who refuse to defend legally aided defendants (under the VHCC scheme) are small-minded, politically motivated activists trying to ruin your career.
3. Those who leave and join the state-run PDS (under your oddly left wing nationalisation strategy) are abused by their erstwhile colleagues.
It’s difficult for the well-trained and highly experienced criminal lawyer to know which way to turn next. Well done, and good riddance to these members of the awkward squad.
In your Telegraph article you robustly defended the MOJ policy of restricting the ability of the British citizen to challenge the Government via judicial review. You cleverly highlighted three judicial reviews that failed in their challenge of the Government’s decision, whilst totally ignoring the many that succeeded. Sneaky! I agree with your stated assertion that access to justice is central to the rule of law. I also agree with your unstated view that curtailing access to justice is central to the rule of the Executive. Citizens must be hindered from challenging politicians’ decisions. Governments are elected and so should be above the law: what is so hard for your moaning critics to understand about that? Further, stopping legal aid for most judicial review cases will save the Government money (although it could be said that money would be saved by them not making unlawful decisions in the first place).
Finally: McKenzie Friends, who have become booming figures in the post-LASPO legal landscape. A McKenzie friend (MF) is the, traditionally unqualified, volunteer who helps and guides litigants in person through their court hearings. A report published on 17th April 2014 by the Legal Consumer Panel has looked into this growing feature of the courts dealing in employment, family, immigration, housing and other areas of civil litigation.
• The report noted that an increasing number of MFs now charge for their services. They found many who worked full time: and had turnovers of between £50,000 and £100,000 per annum.
• A typical fee is £35-£60 an hour and a daily rate of £150-£200.
• They are not bound by a code of ethics (such as client confidentiality).
• Some struck-off lawyers are now working as MFs.
• MFs often had experience of their own court case, work in that area and have a personal agenda to advance.
• Judges are allowing them to act in cases because they are shell-shocked by case after case of litigants in person being unable to differentiate between legal issues and emotion.
• A recent family case was extended by eight days by a MF who repeatedly brought in irrelevant evidence and charged £21,000 in fees.
MFs are unqualified, unregulated, uninsured, unlicensed, untrained, but who cares about that when they cost the Government nothing. In another industry they would be regarded as cowboy traders, but for you they are an admirable solution. The Panel stated “Fee-charging McKenzie friends should be recognised as a legitimate feature of the evolving legal services market.” They must know what’s best for consumers. Either the Legal Consumer Panel is stuffed with anti-legal aid cronies or, more likely, it is a sign of their desperation to help in any possible way litigants cut adrift in the court system.
So the tide is retreating from publically funded legal representation as fast as article 6 will allow it. If you have money in your pocket then the Law is an option for you. Legal aid lawyers are disappearing and are being actively replaced by students, volunteers and litigants in person. Justice is not served by this policy, but by God it’s cheap. The headline above your article in The Daily Telegraph a few days ago was “We must stop the legal aid abusers tarnishing Britain’s justice system.” But, is it not those abusing legal aid that are tarnishing the justice system most?
Yours, ripping up my law degree so as to promote a career in court in the “finest legal system in the world”