No laughing matter

Perhaps one shouldn’t be too surprised at a certain lack of empathy for the lot of the working man from legal aid minister and heir to a £300m family business Jonathan Djanogly (see here and also here). Even so he displayed a shocking lack of sensitivity during last week’s debate on the legal aid Bill. Ministers rejected all but three of the 11 of the amendments made by peers to their controversial Legal Aid, Sentencing and Punishment of Offenders Bill.

The incident arose during an angry debate about the government plans not to protect mesothelioma victims from the ‘no win, no fee’ reforms which would mean that lawyers’ fees coming out of any compensation aid out for the invariably fatal disease. Every year about 2,000 people die of mesothelioma, a cancer of the lining of the lung that arises from exposure to asbestos.

To set the scene, Djanogly, seemingly unembarrassed by his own ambulance-chasing connections, explained how his government’s reforms were all about fighting the ‘compensation culture’. He argued that the opposition’s amendments ‘rate one sort of claim above another’. ‘Somehow, a mesothelioma claim is automatically more worthy than a personal injury claim. The Government simply do not accept that,’ he argued.

It was a crass dismissal of a condition which leaves sufferers dead within on average 12 to 18 months of diagnosis. Anyhow, Blaydon Labour MP and former UNISON union president Dave Anderson, argued that it was very easy to stop our so called ‘compo culture’. ‘Tell employers to stop killing people at work and to stop poisoning people at work. Then people would not be able to claim compensation,’ he said.

Anderson spoke of employers who had contempt for workers. ‘They let workmen go home in dirty work clothes that their wives then washed, and became infected with mesothelioma through doing so. What happened was known by employers. We are talking about employers who were using young kids in Namibia to fill plastic sacks with raw asbestos. They put young kids of seven, eight or nine in the sacks to tamp the asbestos down. That is the type of people we are dealing with—people with no regard for human life.’

The MP reckoned that 42,000 people die in the past 40 years in this country and 60,000 more will die in the next 50. ‘That is more than 1,000 people a year and more than were being killed in the coal mines in this country in the disastrous years of the 1930s,’ said the former miner. ‘That is why this is a special issue.’

Was Djanogoly moved by such arguments? Apparently not. You can view it here (handily signposted at 21.59.45). It’s not an edifying sight. Labour MPs berate the minister for ‘smirking’ and inappropriate ‘body language’ and having ‘giggled and grinned through descriptions of people dying of mesothelioma’. ‘In almost 15 years in this house, I have never seen conduct which so demeans a minister of the crown and which is so damaging to the reputation of this house,’ said Labour MP Helen Jones.

Important concessions were made last week. Namely, ministers appeared to accept that there was a risk of political interference in the role of the director of legal aid casework work when determining exceptional funding provision. They also conceded that legal aid was necessary for welfare benefits appeals to the upper tribunal and senior courts although the justice secretary Ken Clarke rejected amendments to provide legal aid for reviews and appeals to the lower tribunal. However he did suggest that he was investigating with the DWP a system of providing legal aid in the lower tribunal where a point of law was at stake.

The government also backed down on another critical aspect of the LASPO debate. For many commentators the government’s overly prescriptive and baffling take on domestic violence has been indicative of its approach to the legal aid cuts. The Legal aid bill makes domestic violence a precondition for legal aid to access any private family law advice. It’s a massive cut to the scheme: there were 211,000 family cases last year where people received initial advice and assistance under the family ‘legal help’ scheme alone.

Most fair-minded people – and that includes the courts and the police - understand ‘domestic violence’ to encompass ‘emotional’ as well as ‘physical’ violence. Not so the coalition, who proposed that legal aid be restricted to physical violence and, then, only where there was ‘clear objective evidence’ of domestic violence. The good news is that the definition of ‘domestic violence’ has now been amended to reflect the ACPO one. Clarke has indicated that a broader range of evidence would be accepted (notes from a GP or social worker and entrance to a refuge). It’s a welcome change.

A new public service

‘Nothing less than the introduction of a new public service,’ wrote Michael Zander QC, emeritus professor of law at the LSE, of the nascent law centre movement in 1978. I wrote last year in my Guardian blog that the legal not-for-profit sector would bear the brunt of the legal aid cuts that threaten to slash £350 million from the £2.2 billion total budget. I also reflected last week in the same blog, that it was time for the law centres movement to adapt or die as a result of the Legal Aid, Punishment and Sentencing of Offenders Bill.

The Legal Action Group, in its London Advice Watch report, recently predicted that some 80 legal NfP agencies could lose £9.3 million as a result of the legal aid Bill and that would force many agencies to ‘close their doors for good or to cut back drastically’.

The Law Centres Federation last year revealed that that 18 of the 56 law centres were under threat of closure. ‘Already law centres have lost or about to lose in this financial year 53% of their local authority funding,’ LCF director Julie Bishop told me. It was a mixed picture: one centre received a 12% increase and others, such as Hammersmith and Fulham, faced 100% cuts.

According to the LCF, about 46% of its members’ funding came from legal aid and roughly 40% from local authorities with the remainder comes from a variety of sources such as charitable trusts. That funding pattern varies dramatically from centre to centre and so, for example, Islington Law Centre has 16 separate streams of funding whereas other law centres only have one or two. The 18 centres that the LCF identified for possible closure are those most heavily dependent on public funding– in other words, where 60% plus of funding was from legal aid.

The vision of the law centre movement was set out in 1968 pamphlet called Justice for all by the Society of Labour Lawyers which reflected ‘widespread concern’ about ‘serious defects in the provision of legal services to the community’. It made the case for a ‘new institution’ in the law which would ‘function as a public service, staffed by salaried lawyers’ and which would ‘coexist with and be supplemental to private practice’. Michael Zander was on its committee. 
Interestingly, the Conservative party at around the same time argued (in a paper called Rough Justice) that the legal system had to reach out to the poor in order to remedy ‘the failure of many people who need legal advice to ever get to a solicitor's office’. However the mainstream profession fiercely resisted such ideas. ‘They contemplate a radical departure from the concept of legal aid as so far developed… and by introducing a separate and distinct legal service, it would exercise a divisive social influence,’ noted the Law Society in its objections to the Justice for all proposals.

The LASPO Bill will ‘decimate income’ for law centres, comments David Gilmore, a consultant who specialises in advises legal aid firms and the NfP sector. ‘Law centres don't want to charge clients but for some, it could be a matter of survival.’

So both Rochdale and Islington law centres are moving into private fee-paying work. But these new arrangements aren’t simply about financially propping up what remains of the legal aid scheme. As David Gilmore puts it: ‘I don't think it's about competing with solicitors or making money. A key objective of introduce charging services where categories go out of the scope of legal aid – for example, employment and immigration - is to retain the skills of specialised lawyers working within the NfP sector. Once those skills have gone, it would be difficult to get them back.’

As he explains, those agencies that do, reluctantly, decide to introduce charging services ‘will ensure that any surpluses are either re-invested in the service or given to the law centre’. The idea at Rochdale and Islington is to separate the fee-paying business into a standalone community interest company (or CIC), a relatively new corporate structure designed for social enterprises that want to use profits for the public good.

While a law centre, as an entity, is not allowed to charge for services, a linked organisation may, Gilmore explains. ‘For example, a law centre may, through an ABS application own a separate charging company. Alternatively, key personnel from the law centre could establish a community interest company or a co-operative through which to charge for services.’ A CIC is new corporate structure introduced by New Labour and designed for social enterprises that want to use profits for the public good

‘We have spent a lot of time looking at whether the primary aim should be to support the law centre financially or whether it should be to meet the needs of clients who would otherwise go without access to justice,’ Ruth Hayes, manager of Islington law centre told me. ‘Our primary purpose is to meet a social need,’ said Hayes. ‘We know that there will be people with no access to any funds and those who will go without services next year.’

Their solution is to means test clients and offer cheaper rates accordingly - cheapest rates for those on very low incomes (‘i.e. those who would be eligible for help under legal aid at the moment’) and a premium or supporters’ rate for, as Hayes puts it: ‘the kind of people who would buy fair trade coffee or their Christmas cards from Oxfam – i.e., who were going to do this anyway but who would like to know that the profit element will support our work for people who would otherwise not be able to afford help’.

A few miles to the East, Hackney Community Law Centre has also decided to ‘fight back’ but in a different way and by going back to the movement’s roots. The law centre is launching a major profile-raising initiative to, in the words of manager Sean Canning ‘popularise the concept of the law centre’. True to the law centre ethos, it will be rolling out its ‘Community Law Shops’ initiative taking its services directly to the community through a presence in local libraries and FE colleges.

Serving a deprived but vibrant community in East London for almost 40 years, the law centre is (in its own words) ‘part of Hackney’s furniture’. The centre reports that it has taken on 52% more cases this year in housing, welfare benefits and debt compared to the previous 12 months. Its ways of working may have to change but – Hackney insists - its raison d’etre remains the same. Just as the first law centres created waves in the legal establishment when they first opened, so Hackney Law Centre now hopes to do the same all over again.

Forget Tesco Law...

If ever a movement was wrongly named then frankly it’s ‘Tesco Law’, the shorthand for the ongoing deregulation of legal services. Tesco has famously shown zero interest in the law, whereas their high street rivals the Co-Op have built a legal division from scratch to almost 450 employees in six years.

Last week Co-operative Legal Services became the first consumer brand officially to be licensed by the Solicitors Regulation Authority. The retailer, together with two high street firms (John Welch and Stammers and Lawbridge Solicitors Ltd), became the first SRA-licensed alternative business structures (ABSs) under the Legal Services Act 2007.

I spoke to Eddie Ryan, managing director of the Co-Operative Legal Services, last week and asked if he expected commentators to adopt a name change. ‘If they continue to call it “Tesco Law”, I’ll be bemused,’ said Ryan. ‘“Co-Op law” should have been adopted some six years ago as soon as we established Co-Operative legal services.’

This is the third in a series of blogs to explore ‘access to justice’ in the context of ABSs and the savage cuts of the Legal Aid, Punishment and Sentencing of Offenders Bill. The Co-op sits at that intersection where liberalization of the legal services market meets the massive retrenchment of the legal aid scheme.

In my first blog, I reported that at the end of last year the Co-Op launched a family law service spearheaded by lawyers from leading London legal aid firm TV Edwards. Jenny Beck, co-chair of the Legal Aid Practitioners Group and former managing partner of TV Edwards, denied her decision was motivated by money. ‘If you were a legal aid lawyer 10 years ago you would have been helping infinitely more people than now,’ she said.

Quite. In fact, the Co-op has long noted the cultural fit between its co-operative values and that of publicly funded law. Four years ago I interviewed Eddie Ryan for the Legal Action Group’s Legal Action journal in an article looking at whether new market entrants under the ABS regime would have any interest in legal aid work. It has to be said that the weren’t prospective ABSs queuing up to discuss their plans to promote access to justice to those people who are traditionally excluded from legal services. But Ryan spoke then about the Co-op ‘wrapping our arms about people who need our help’. ‘Legal services are a distress purchase or a purchase of necessity,’ he said. ‘We are there when people need us or in times of distress.’

The rhetoric sounds great; but what – if anything – can the Co-op offer to clients that is not being offered already? Hopefully, we shall soon see. A key part of the Co-op’s move into legal services will be a low-price, fixed fee tariff for family work. The Legal aid Bill will scrap legal aid for nearly all family cases. That leaves an enormous justice gap.

Earlier this month Sir Nicholas Wall, president of the family division, predicted ‘a substantial increase’ in the numbers of litigants-in-person ending up in the family courts as a result of the government’s proposals. Sir Nicholas drew a distinction between ‘big money’ cases and routine cases. ‘What worries me are the smaller cases where there is no representation, where, for example.... there is a serious imbalance between an impoverished wife and a better off husband,’ he told the family lawyers’ group Resolution annual conference. ‘The difficulty is compounded if neither side receives sensible advice.’

On the government’s own figures there were 53,800 cases last year where people received representation before the courts under the legal aid scheme – plus a further 211,000 family cases where people received initial advice and assistance.

‘Legal aid has provided a really important safety net for people over the last 50 years and that safety net is being pulled away,’ Christina Blacklaws, who chairs the Law Society’s legal affairs and policy board, told me. Parties will only be eligible for legal aid if there is evidence of domestic violence. ‘What does that say about our legal aid scheme?’ said Blacklaws. ‘Hopefully we will help to bridge the gap.’

We can expect the Co-operative Legal Services to be heavily promoting low-price, fixed fee tariff for divorce work. For all the hype about the marketing clout of solicitor networks such as QualitySolicitors.com, it shouldn’t be overlooked that every week 15 million shoppers walk down the aisles of some 3,000 stores.

Fixed fees in divorce work is a genuinely compelling offer and gives vulnerable clients price certainty at a time of their lives when they need it most. As Blacklaws told me she couldn’t actually afford her own services as a lawyer. ‘No one likes hourly rates,’ she said. ‘We are going to be doing away with that so we can have good value, quality, fixed-price services and people know exactly what they are going to get.’