Tag Archive | "Jonathan Smithers"

JSC report on courts and tribunals fees


The Justice Select Committee (JSC) is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies. On Monday the committee published its second report, on Courts and tribunals fees.

The JSC said: “First, although it is a legitimate position to object to any court fees being charged to litigants, that is not a position we share. Some degree of financial risk is an important discipline for those contemplating legal action, and a contribution by users of the courts to the costs of operating those courts is not objectionable in principle: the question is what is an acceptable amount to charge taking into account the need to preserve access to justice.”

The JSC’s response to that question is to call for an overhaul of the employment tribunal fees scheme and to scrap the recent increase in the divorce petition fee. A full response to the committee’s critical report is likely in September, but in the meantime the MoJ has defended its record on the imposition of fees.

An MoJ spokesman, quoted in the ‘Gazette’, said: “The cost of our courts and tribunal system to the taxpayer is unsustainably high, and it is only right that those who use the system pay more to relieve this burden. Every pound we collect from fee increases will be spent on providing a leaner and more effective system of courts and tribunals.”

The JSC focused much of its report on the need for changes to the remission system, which reduces fees for those who can show they are in financial need. The report says: “The cornerstone of efforts to mitigate the impact of courts and tribunal fees on access to justice is fee remission.

“Fee remission is only available to individuals, including those who conduct their business as sole traders. It is not available to companies, charities or other organisations. Claimants must submit separate applications for remission of each fee, and to be successful, they must first pass the disposable capital test and then the gross monthly income test in respect of each fee.”

In particular, with employment tribunal fees, the JSC called for the income threshold to qualify for fee remissions to be increased.

Law Society president Jonathan Smithers said: “The Law Society and the solicitors’ profession have raised repeated concerns, in written submissions and oral evidence, now echoed by the Justice Select Committee, that punitive courts and tribunals fee increases are denying citizens and businesses the right to justice. The government must now heed the views of experts from across and beyond the legal profession. We welcome and reiterate the JSC’s unequivocal declaration that access to justice must prevail over generating revenue when the government is setting court and tribunal fees.”

He went on to say: “’The JSC clearly recognises the Law Society’s concerns that punitive employment and immigration tribunal fees prevent people from upholding their rights. We urge the MoJ to act swiftly on the JSC’s recommendation that the fees charged in the Employment Tribunal should be substantially reduced. Court-fee increases that have now been adopted were opposed by 90 per cent of respondents to the government consultation, making a mockery of the consultation process. Today’s report vindicates the concerns of those respondents.”

He concluded: “’All civil cases, from divorce, employment and immigration cases to landlords and small businesses trying to get their property back, are affected by fee increases which are tantamount to treating justice like a commodity. Justice is increasingly out of reach for many ordinary people. This will only serve to widen the access to justice gap in our two-tier justice.”
The full text of the JSC report can be found at:

http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16702.htm

Posted in Civil LawComments (0)

New criminal justice advisory council


When the lord chancellor announced on 28 January that he would not press ahead with dual contracting for criminal legal aid he said: “I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system.”

The lord chancellor announced that he had “an ambitious programme of reform to our courts planned for the rest of this parliament. It is designed to make justice swifter and more certain. The reforms to our legal system, including taking more work out of courts, moving from a paper-based system to a digital platform, tackle unnecessary costs and reduce harmful delay, and these reforms will need the support of all in the legal profession.”

The new council is intended to be one of the mechanisms to assist him in understanding how these reforms could be effected.

The council’s full membership has not yet been announced, but its chair will be Gary Bell QC of No5 Chambers. Off to a flying start, Bell has invited anybody involved in the criminal justice system throughout England and Wales to contact him if they have matters they want the council to consider.

Writing for the Gazette online, Bell said: “The council will include a mix of barristers and solicitors as well as representatives from the Legal Aid Agency and the judiciary. Because it is very important that your views are reflected in as efficient and timely a way as possible it is essential that the membership of the panel reflects this need in its composition and location so as to be as efficient and focused as possible, but it is the views of individual professionals involved in the criminal justice system throughout the length and breadth of the jurisdiction that the panel would like to see.

“It is not a substitute for the Bar Council and the representative bodies who engage with the lord chancellor on a regular basis but an additional and important source of assistance.”

He goes on to write: “The council will not consist of members of representative bodies. It will be composed of individual barristers and solicitors in private practice who can express their own views without any external pressure brought to bear upon them. In that respect the council will be unique in that any findings and recommendations it makes will be those of the combined profession rather than representing the narrow interests of one branch or the other.”

He sees that the job of the council is to “consider all matters affecting efficiency, delay and waste within the system and make recommendations to the lord chancellor as to how best they can be eliminated. It will draw to the lord chancellor’s attention what it considers to be errors or abuses emanating from the system itself and any it encounters coming from the professions. In other words, it will be open and fair to all sides but also blunt and realistic.”

His article concludes: “The panel is not concerned with personalising criticisms, wherever they could legitimately be made in any part of the criminal justice system, but in addressing issues: using the people who really know – and that is you.”

Law Society president Jonathan Smithers said: “We would encourage our members to engage with this advisory council, as it is a good way to ensure that our concerns about inefficiencies in the criminal justice system are made known at the highest levels of government.”

Posted in Criminal JusticeComments (0)

The need for a review of legal aid


The Legal Aid Act has denied justice to the most vulnerable and must be reviewed. The government is committed to a review after three years but there is mounting evidence that it should come sooner.

On people trafficking, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The legal aid cuts have added to the strain on divorcees. Evidence gathered by Citizens Advice shows that nine out of 10 people who have gone through the family courts, under new rules that heavily restrict access to legal aid, suffer strain in their mental and physical health, working lives and finances. The system is not set up to deal with “litigants in person” (LiPs). Of those who chose to be litigants in person, 90% reported a negative impact on their everyday lives.

Three years after the government scrapped legal aid across swaths of civil law, more ‘advice deserts’ are materialising in the sectors that remain in scope. A number of areas have no cover at all. The Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

The Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. The Law Society backed the challenge brought by the Public Law Project. Society president Jonathan Smithers said: “The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand.”

The Low Commission was established by the legal education charity Legal Action Group in 2012 in the wake of the legal aid cuts to develop a strategy for access to advice and legal support in social welfare law in England and Wales. It was set up to examine the impact of legal aid cuts and develop a strategy to help ensure access to justice. It is to be wound up because of a lack of funds.

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid. He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years.”

He went on to say: “Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working.”

Corbyn will agree with the 22 signatories, including Chantal-Aimée Doerries QC Chair of the Bar Council and Jonathan Smithers President of the Law Society, to a recent letter in the ‘Guardian’. Short and to the point it said: “We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013. We agree with the justice select committee that the cuts have limited access to justice for some of those who need legal aid the most.”

It concluded: “The government has repeatedly said it will carry out a review to assess the full impact of the legal aid changes after three years. Today we call on ministers to fulfil this commitment at the earliest opportunity. We believe it is vital for government to ensure nobody is denied access to justice based on their ability to pay.”

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The Court of Protection


The Court of Protection (COP) was established under the Mental Capacity Act 2005. It has jurisdiction over questions relating to both health and welfare and financial affairs, and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.

This week the Court ruled that people unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty.

In a judgement, achieved by way of four test cases (JM & others), where no appropriate representative could be found for reasons including resource constraints, Mr Justice Charles, vice president of the Court of Protection, said: “I do not agree with the Secretary of State that it is appropriate for the COP to direct the applicants to take steps to provide or identify a person or persons who the COP could so appoint in these test cases or cases in the class represented by these test cases. The main reasons for this are:

  • the applicant authorities have no statutory duty to do this,
  • there is at present no available pool of people who are ready, willing and able to accept such an appointment by the COP,
  • absent constructive discussion with and help from central government there is no reasonable prospect that any such pool of people will or should be created by applicant authorities within a    reasonable time-scale or at all,
  • the applicants in the test cases have expressly confirmed that as they have no statutory duty to do this they will not do it, and
  • it is unlikely that other applicant authorities would take a different view.”

Mr Justice Charles ruled that: “In my view, the primary responsibility to provide a resource that enables the COP either to make such appointments or to otherwise meet the minimum procedural requirements in these test cases and cases in the class they represent falls on the Secretary of State, or on the Secretary of State together with the applicant authorities.”

In this unprecedented judgment, Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

As reported in the ‘Gazette’, Law Society president Jonathan Smithers said: “Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in a hospital, care home or a family home….The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authorities’ and government budgets are stretched,” he added. “But those who are least able to defend themselves should not be sacrificed on the altar of austerity. Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

The full text of RE: JM, AMY, JG, MM and VE, Neutral Citation Number: [2016] EWCOP 15, can be found at:
https://www.judiciary.gov.uk/wp-content/uploads/2016/03/finaljm.pdf

Posted in Civil LawComments (0)

Law Society submissions to the Bach Review


The ‘Gazette’ reports that the Law Society is considering how an innovation fund could help legal aid solicitors harness new technology to improve access to justice.

In a submission to the Labour party’s legal aid review, the Society said there was “scope for innovation” among solicitors to produce “bespoke technological solutions that reflect their businesses and meet the needs of their clients.”

Inevitably there are doubts whether solicitors could afford the investment required. “The Society is therefore looking into whether there might be scope for an innovation fund, whereby grant funders would make grants to firms that have ideas for ways of using technology to improve access to justice,” the submission states.

In its submission to the review, the Society identifies the Partnership Initiative Budget, which operated under the former Legal Services Commission, as a precedent. “We are still in the early stages of considering this idea, but our initial thinking is that such a fund might be generated from a combination of private, third sector and public sector sources,” the submission states.

The Society also suggests that alternative approaches to civil legal aid remuneration should be considered. “We believe it is worth looking again at the fundamental point that legal aid currently works on the basis of paying individually for each of millions of pieces of advice provided.”

The submission points out that “there is a precedent in the form of the old block contracting system for the not-for-profit sector where the provider was remunerated on the basis of caseworker hours rather than for each individual case.”

The Law Society also warned that civil legal aid cuts will result in an increase in costs to the tax payer because failure to get early expert legal advice can result in people’s problems escalating dramatically, when they could have been nipped in the bud.

Law Society president Jonathan Smithers said: “Successive governments have repeatedly cut back the legal aid budget and this review provides a crucial opportunity to consider the fundamental question of how to restore and protect access to justice for everyone in the 21st century, regardless of their economic circumstances.”

Smithers said: ‘There is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people. There are significant cost savings for society if people can obtain expert legal advice and representation,” adding that “early legal advice can forestall an escalating sequence of problems that in extreme cases can result in issues like homelessness. Prompt intervention can also help people to find a solution that doesn’t involve the courts.”

“The current legal aid system needs reform,” he said. “The capital means test for benefit claimants and evidential burdens for domestic violence determine who qualifies for legal aid help. These are preventing victims of domestic abuse from accessing legal aid in family cases. When no other realistic option exists for someone to assert their legal rights, funding from government must be available.”

‘Technology can improve access to justice, but proposals for digital courts will not remove the need for solicitors, who play a vital role in overcoming the barriers that people face in obtaining justice,” he said.

Labour is to present the findings of Lord Bach’s legal aid review at this year’s party conference in the Autumn.

Posted in Civil Law, Legal AidComments (0)

Domestic violence legal aid time limit invalid


Last year the High Court rejected a legal challenge from domestic violence charity Rights of Women over the lawfulness of rules that require domestic violence victims to provide a prescribed form of evidence to apply for family law legal aid.

However, in The Queen (on the application of Rights of Women) v The Lord Chancellor and the Secretary of State for Justice, the Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. Read the full story

Posted in Civil Law, Law Updates, Legal AidComments (0)

Nearly a fifth of all courts and tribunals in England and Wales to close


Eighty-six of 460 courts and tribunal hearing centres will shut as part of “modernisation” plans, HM Courts and Tribunal Service has confirmed. The reforms aim to reduce the £500m annual cost of the courts estate. The government has published a schedule for the closures, with six phases planned between now and September 2017.

Justice minister Shailesh Vara confirmed that, on average, the 86 courts due to be closed were only being used for just over a third of their available hearing time, equivalent to fewer than two days a week. The government has reprieved five courts identified for closure as part of its review of the estate. Read the full story

Posted in Law UpdatesComments (0)

Contingent legal aid fund (CLAF)


Last week Lord Justice Jackson called on lawyers to resurrect the old idea of a contingent legal aid fund (CLAF) to back worthy cases.

The idea of CLAF was first floated by legal charity Justice in 1966. The classic model for a CLAF, as described in a 2009 Bar Council discussion paper, is where the fund’s administrators agree to back the claim if the likely chances of success and damages justify support. In return, the client, upon success, pays a percentage of the damages recovered back to the fund. The costs of the successful case are recovered in the ordinary way from the defendant and contributions from the successful claimant’s damages fund future cases. Read the full story

Posted in Law UpdatesComments (0)

Legal aid contracts: what now?


For the past couple of years the Legal Aid Agency has been fighting a fruitless battle with the legal profession over the legal aid contracts system. Right up to the last minute the Agency was stubbornly protesting that the legal actions that finally buried the contract nonsense would be stoutly pursued.

Then Michael Gove pulled the rug from underneath them, leaving the Agency to put out the following sad little statement:

Read the full story

Posted in Criminal Justice, Legal AidComments (0)

MoJ yet again postpones legal aid contracts


You couldn’t make it up. Faced with a tidal wave of litigation over new crime duty contracts, MoJ has postponed their start date until April. There is also a contingency for a further delay should it be needed.

The Legal Aid Agency (LAA) had previously insisted that it planned to enter into the new contracts on January 11 next year, despite litigation from unsuccessful bidders. But it has now stated that both the new contracts and the fixed-fee scheme for police station and magistrates’ work will now come into effect, appropriately, on 1 April. MoJ said:”A number of unsuccessful bidders have chosen to legally challenge our decisions. There are now automatic injunctions on us proceeding with the new contracts in a number of procurement areas until those legal challenges are resolved. Our first priority is to ensure criminal legal aid remains available to those who need it and we cannot risk gaps in provision due to ongoing litigation. We have therefore taken the difficult but necessary decision to delay the implementation of the new contracts.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

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