Posted on | November 26, 2011 | 29 Comments
Ken Clarke has aroused the ire of many lawyers and many non-lawyers of this week for his remarks in an interview with the James Lewis for the International Bar Association. You can watch the video here. Following is an imperfect transcript of the relevant bits. The part that has really worked everyone up into a lather is marked in bold. There have been some reports that Ken Clarke also described the legal profession as “disingenuous cowards” although this is a misattribution, intended to summarise the thrust of what Clarke was saying. Where the phrase came from matters little: it may not be a direct quote but it seems to me it pretty much nails it as to how our Justice Secretary really feels about his own former profession, or at least one branch of it (he seems to be particularly sneering as regards the family bar). One might also argue that it is a pretty accurate descriptor for the manner in which Clarke is conducting his defence of the Bill, by smearing those who are critical of it rather than by engaging with the substance of their complaints.
So, that transcript:
KC: where I disagree…strongly…is that the fundamental look we’re having at our huge and bloated and expensive legal aid system is actually somehow genuinely depriving the vulnerable of access to justice.
JL: OK But your own funded body the Civil Justice Council has found that at best these cuts will cause delays and difficulties and that at worst will result in what they call a denial of justice for the most vulnerable in society?
KC: If I manage to get all my changes through the House of Lords we will still have by far the most expensive system of legal aid in the world. No other western democracy would make taxpayers moeny so widely available for so much litigation and legal advice even after I’ve made the reductions. Just to put these comments into proportion, so last time I met the back bench peers about to debate this I said “What you have marching towards you is an army of lawyers advancing behind a line of women and children, saying of course theyre not concerned about the income of the profession, their only concern is for these vulnerable clients who will be adversely affected if they are not paid at the rate they currently are”
I move to the particular if you like: this presentation of what we’re doing as somehow depriving people of access to justice is one I strongly reject…I haven’t just cut it I’ve asked the fundamental questions of what in a democracy, what legal services should the taxpayer pay for ..making the poor extremely litigious.
JL: Senior lawyers and judges are making the point that properly costed and will cause inefficiency…litigants in person
KC: Yes if people pursue the litigation they do now and legal aid is not available to them they will all appear in person. Purely speculative litigation would not be brought if not for the ready availability of public funding….It is much more difficult if you are a judge to have a litigant in person.
JL: the costs go up?
KC: Well…do they? judges for whom I have a lot of time very senior and distinguished, I don’t think it will happen on this scale – they all know how you have to handle a case with a litigant in person, and makes sure they are not too severely disadvantaged. They are disadvantaged a bit. You have to bend over backwards… be firm. It’s a nuisance. I’ve seen some very good litigants in person, almost professional. I really do not think…its not going to cause problems which is going to make the great savings in public expenditure not attainable.
No politician has ever tried to save a penny on anything labeled law and order….
JL: (housing / family) If this denial of justice talked about by CJC pressure on NHS other parts of the system costs will go up…simply cutting legal aid budget will push costs elsewhere?
Campaigning nonsense. If anybody is running the risk of losing their house and their home they will get legal aid…all cases of domestic violence, abuse of children we’re still giving legal aid. The family practice – we are making big changes there. Cecause we have these ever mounting problems, very difficult emotional serious problems breakdown of marriages, breakdown of partnerships and problems with children…ever burgeoning quantity of adversarial litigation pursued by adversarial lawyers is not the best way of resolving those. Family disputes, welfare of children there are a whole variety of ways one can go about it where we’re putting money is less adversarial and litigious ways of resolving – mediation we’re putting more money into mediation.
In my personal opinion (I’m not the only person who holds this) for many people locked in these terrible disputes about their children, frequent appearances in the family courts, the legalistic adversarial nature of the whole thing makes things worse – you most probably know people who get obsessed with the problems and obsessed with the process of the court determining custody access to children or whatever and there are – one way of re-examining is to go back to first principles what were trying to do is to resolve disputes, to mitigate problems, to help people resolve conflict and to do justice – and the family problems just need addressing almost fundamentally. What were not doing is taking people of very limited means where their home is at risk or their child’s welfare is seriously thereatened by abuse or anything of that kind – arguments about definition of domestic abuse is people trying to broaden the scope of what we’re trying to do because there is more money in it.
I’m trying to identify the genuinely vulnerable not the vulnerable legal – I want to identify vulnerable litigants not vulnerable law practices. That’s the line I’m trying to draw.
So, we’re pretty clear then. Family lawyers are a waste of space, a waste of money and serve no useful purpose. And they lie, they manipulate and they exploit. This is not just a trimming of aspects of family legal aid that have got out of hand, this is a campaign against the principle of a family justice system. From a man who thinks we still have “custody” or “whatever”.
Some people are so outraged by this that there is dark muttering of retaliation by personal attack on Ken Clarke – disbar him, tar and feather him, put a potato up the exhaust of his ministerial car or post it note on his jacket saying “Kick me”….Such japes might make one feel momentarily better, but ultimately where will it get us? I’d like to accidentally-on-purpose spill my rioja on his hush puppies, but it would be a terrible waste of plonk, and he probably has an identical pair for each day of the week. On reflection I don’t see much mileage in complaining that Ken Clarke is a traitor to the legal profession, the more important issue is that Ken Clarke is the figurehead for a government that has betrayed the voters, the vulnerable. It’s the politician not the lawyer that we should attack. And Ken should stop using his visible attack on lawyers as a cover for his largely unreported assault on the vulnerable. Tactically speaking, in this battle we need to refocus attention on the vulnerable, and away from the legal profession, it’s self interest and it’s self image.
So, in some kind of attempt to be constructive, what I am going to do is unpick the disingenuous rubbish that is contained in this interview and expose it for what it is (namely rank hypocrisy and the lowest form of politicking), in the (probably vain) hope that someone with a bigger circulation than me will pick it up and run with it – the press and media coverage of this scandalous Bill (Legal Aid, Sentencing & Punishment of Offenders Bill) is pathetic. This should be big enough news to have found some space between X Factor and Leveson. So here it is, on a plate:
“Most expensive legal aid system in the world even after the cuts”
Numerous commentators have exposed the inaccuracy of the proposition that we have the most expensive legal aid system, and noted the fact that our comparatively high legal aid costs are a function of our significantly low court costs. I dealt with it here, Sound Off For Justice dealt with it here, and many others have covered it.
So, logic tells me that if it’s not the most expensive legal aid system in the world before the cuts, it probably won’t be the most expensive after the cuts.
But that’s just logic. What does he know?
“Army of lawyers say vulnerable clients will be adversely affected if they are not paid at the rate they currently are”
The rate we are currently paid at? That would be the rate that has been consistently cut (not even flatlined) since I have been in the job (a decade)? That would be the rate that has been reduced by 13% as of this year under the Family Advocacy Scheme and which is being cut by a further 10% in February? That would be the rate that has already led to experienced lawyers leaving, to firms packing up, and to making staff redundant?
Notwithstanding all these points I defy anyone to find any of the lawyer’s representative bodies arguing about the rates we are paid at. The argument has been about the scope of legal aid, i.e. what sorts of cases it does and does not cover and what sorts of clients will be able to obtain it. Indeed the Bill doesn’t even propose a further reduction in rate, it simply says “Alakazam! No legal aid for THIS type of case! And THIS type of case!”. Why would we be arguing against proposed rate cuts that don’t exist? What’s more none of the legal representative bodies are arguing for no reform to legal aid or no cuts to legal aid, recognising quite rightly that there must be some economies. They each make concrete proposals for how money could be saved without adverse impact on access to justice. Those proposals have been discounted.
Ken Clarke is happy for the public to believe we are obsessed with our rate of pay because then he can use false logic and smoke and mirrors to distract people from the real issue – not lawyers’ fees but access to justice.
I often explain it like this. Family lawyers (and legal aid lawyers generally) are quite capable of making a good income from a range of different jobs. They have chosen to make their income, such as it is, in this particular field. Everyone has to make a living, and most of us would rather do it by helping others. The fact that nurses and doctors make a “profit” from helping the sick does not make them mercenaries, neither does it mean that we disregard everything they say when they advocate for better patient care or offer their expertise about how to improve the system. The fact that legal aid lawyers who are saying that these proposals will be catastrophic for access to justice also happen to make their living from undertaking legal aid work does not render everything they say untrue or meaningless. If that were so we would never accept guidance from any professional in any paid capacity about their field of work and how it might be changed or improved. It is a sleight of hand to suggest that everything lawyers say is said out of self interest.
What lawyers have been saying for years is that the constant cutting of legal aid rates and now the massive contraction in legal aid breadth will have a big impact on the sustainability of the market for legal aid providers. Firms are shutting up shop, merging, people are leaving or planning their escape. What will the landscape be like then? If legal aid deserts emerge it won’t just effect people in the kinds of disputes that Ken Clarke evidently considers trivial and stupid (disputes about children after divorce or separation), because the destabilising of the legal aid provider marketplace is so profound that there will be a desertification of provision for clients who need lawyers to represent them in care cases. When the state wants to remove your child or have it adopted against your will you really do need a lawyer. Leaving public law family cases in scope won’t make a blind bit of difference if all the family lawyers have shut up shop an gone off to run a B&B in Dartmoor. And don’t think Coop will want them. They won’t.
Litigants in person – judges can handle it
The Green Paper that preceded the Bill acknowledged that there was little evidence about Litigants in Person and the likely impact on the system (or on outcomes) of an increase in their numbers. The impact assessments acknowledged that further work would need to be done in this area to understand the likely impact. The FLBA (amongst others) pointed out how extraordinary it was that such changes should be proposed without any proper evidence base. Reliance upon Kenneth Clarke’s gut feeling as to how competent his judicial chums are likely to be if faced with an influx of massive numbers of “inconvenient LiPs” is not good enough. All the other bodies whose members have the day to day experience and expertise to be able to help guide the Government, including the Civil Justice Council have expressed real concern.
“No politician has ever tried to save a penny on anything labeled law and order”
Of course they have. There have been repeated cuts to legal aid, and repeated attempts to redesign the scheme.
The poor are “extremely litigious” as a result of the availability of legal aid
There is a means and merits test for most categories of work. If too many weak cases are being litigated as a result of the availability of legal aid the mechanisms for merits testing and withdrawal of funding should be examined. I doubt whether many low income individuals are in pursuit of pointless claims simply because they feel they can get a freebie, and the suggestion that this is so belies a poor understanding of the desperate situations most litigants have reached before seeking help through the legal system.
Are the poor to be classed as “extremely litigious” when they go to court to try and get chronic disrepair by social landlords tackled, when they appeal wrong decisions in respect of vital benefits, when they go to court because all attempts to get contact to their children have failed? Are the poor extremely litigious when they go to court because the Local Authority has breached it’s legal duty towards them to provide them with social care, or when they sue hospitals for compensation for negligently caused injury? Are they? If there is more litigation we have to look at why that is: low standards of care or service provision, poor quality of claim management, unlawful behaviour by the state or it’s arms.
“All cases of domestic violence”
Well it’s NOT all cases of domestic violence. It’s those who can prove with “objective evidence” that domestic violence (defined in a limited way) has taken place within the last 12 months. And even where a victims qualifies for legal aid this will afford him / her no protection from cross examination from her / his ineligible abuser.
“All cases of abuse of children”
Children may get legal aid. The parent who is the subject of a (possibly false and malicious) allegation of abuse will not.
“We’re putting more money into mediation”
They’ve just pulled the plug on the mediation helpline. Mediation will never be able to solve all family disputes, even less so if not adequately funded.
“Ever burgeoning quantity of family litigation”
To quote the Government’s own material:
There were 24,300 children involved in public law applications in 2010; a decrease of six per cent compared with 2009. This decrease follows a peak in applications received in 2009, when there was significant media coverage of local authority child protection practice.
• The total number of children involved in private law applications decreased by eleven per cent compared with 2009, from 137,500 to 122,800. This decrease is a reversal of the recent upward trend in applications since 2005.
• There were 133,500 petitions filed for dissolution of marriage in 2010, an increase of one per cent compared with the previous year; whilst the number of divorces increased by five per cent, a reversal of the recent downward trend.
• Applications in county courts for domestic violence remedies decreased by eight per cent in 2010 compared with 2009. This included applications for non-molestation orders which decreased by six per cent and applications for occupation orders which decreased by 14 per cent.
Note that the area being slashed the most brutally, private law children, is down 11%, no burgeoning at all.
“Legalistic adversarial nature of family litigation”
Ask any of our non-family colleagues: they snark at us all the time about how there is no law, no rules, and everything is subsumed in a fog of “discretion”. There is a place for adversarial legal conduct, but this is far from the only skill in a family lawyer’s repertoire. Any lawyer who attempts to practice simply by being adversarial will flounder pretty quickly. A successful family lawyer will be able to be empathic, non-confrontational, to think creatively, to seek solutions and to promote compromise, to be gently explorative and non-judgmental. And legalistic? We have 3 statutes, they all say “use your discretion, put the child at the top of the list” and although we have a vast new set of Family Procedure Rules they are honoured in the breach.
Drawing “a line between vulnerable people and vulnerable lawyers”
See my comments above on the impact on vulnerable people if the legal profession becomes so vulnerable that we all pack up and go home. Ken Clarke would no doubt say that we won’t do that, but some already have. And the real question is who will be left once the skilled, experienced and conscientious have turned out the lights? The inexperienced, the unscrupulous and the insufficiently expert. Draw a line in the sand Ken, but the tide will soon wash it all away. The vulnerable will be left staring out to sea with neither boat nor paddle.
Apologies for less links to external sites than I would have liked. It’s a question of proportionate use of my time.