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Latest edition of Justice for All now out

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Click here to download our Spring edition of Justice for All. 

Inside this issue:

  • Lifting the Burmese Bar, by Lucy Scott-Moncrieff
  • Zero Hours, by John Usher
  • Justice Adjourned, by Charlotte Proudman
  • Strategic Steps, by Richard Clayton and John Wadham
  • Law and the Information Society, by Dave Drew
  • Time for Transparency, by Tom Jones
  • Message from the Chair
  • Specious Argument, by Stephen Hockman QC

Previous editions can be found at: http://www.societyoflabourlawyers.org.uk/jfa/

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Public services: Quality and Accountability

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Stephen Struthers calls for an end to the exploitation of service users and taxpayers by privatised public sector organisations

We Own It is a new campaigning group calling for high quality services owned by and accountable to the public. We are promoting the idea of a Public Services Bill to take this forward.

In modern societies most people accept that, for practical reasons, some services and assets should be shared and accessible to everybody. Directly or indirectly, everybody does or may use them. We believe this implies that the government has a special duty to ensure that they are operated in the interests of the whole community, and not just shareholders and executives.

For too long, governments have had an easy ride in their headlong rush to sell-off public assets and services, often justified, despite any evidence, by a simplistic mantra that privately owned means efficient and “good”, whereas anything public is inefficient and “bad”. We believe there are better ways of organising public services and owning assets.

We Own It is campaigning to ensure that there is proper consent for the activities of organisations running public services and to prevent the users of these services and taxpayers being exploited by avaricious corporations. The public has a legitimate interest in overseeing the activities of “natural” or state-guaranteed monopolies, both because they are conducted in a common space in their name and interests, and also because nine times out of ten they are paying.

While there is still much work to do on the details of a Public Service Users Bill, we believe the main parameters are already pretty clear. There are two groups of demands – first, in connection with decision making about how a public service should be run; and secondly, about accountability for the way in which public services are run or assets held.

On decision making:

  • Priority should be given to not-for-profit organisations with an “asset lock” to safeguard the public interest. Indeed this should be the default option for services supplied on behalf of any public agency. Local and national government would be expected to explore appropriate best practice models before any prospective contracting out to a private company. Independent polling by Survation, commissioned by We Own It in the summer, shows that this is supported by 60% of the public, and 73% of Labour voters.
  • Wherever possible, there should be a realistic and thorough in-house bid whenever a public service – local or national – is put out to tender. However, we have to recognise that there may be occasions when the public sector does not have the capacity to carry out a service. This proposal is supported by 80% of the public.
  • There needs to be transparency and a proper public consultation and debate about a proposal to sell off or outsource a public asset or service. Imperfect though they may be, there are guidelines as well as case law about how consultations should be handled. As we know, there was no public consultation about selling Royal Mail and the Conservatives conveniently forgot to mention it in their general election literature. A demand for consultation is supported by 79% of the public and 90% of Labour voters.

And on accountability:

  • The public must be properly consulted about the content and parameters of contracted services so that they can influence and shape them.
  • The public must have a ‘right to recall’ to end contracts which are not being properly fulfilled. This will address an issue that has been brushed under the carpet too often. We are repeatedly told that it is not possible to even amend, let alone cut short, long-running contracts where performance standards are clearly not being met. Unsurprisingly, this proposal is supported by fully 88% of the public in our polling.
  • Organisations running public services must be open and transparent about their performance and financial data – as we quite rightly expect from the public sector. Indeed, we would expect them to be fully subject to Freedom of Information legislation: it goes with the territory. It is no surprise to us that 48% of the public mistakenly believe that companies running public services already are subject to Freedom of Information because it is absurd that those working in a privileged position on behalf of the public can do so in secrecy. It seems only right that, in return for this privilege, there should be proper transparency about how these services are delivered and assets used. Recent misinformation about pricing by the energy utilities makes this argument for us.

High quality, accountable public services are good for everybody. Our survey evidence shows that the public as a whole recognise this, and the importance of safeguarding them. We now have to turn these good intentions into a concrete Public Service Users Bill. Readers who would like to help, to be part of this campaign to create a better policy environment, should contact We Own It (info@weownit.org.uk) or visit www.weownit.org.uk.

Stephen Struthers is a team member of We Own It, and a former research manager

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Ending zero-hours exploitation

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Gus Baker considers how employment status can be made to work for vulnerable workers

Up to one million people are working under zero-hours contracts in the UK, according to the Chartered Institute of Personnel and Development (CIPD).

The problems faced by workers on these contracts are twofold. Not only does the lack of a guarantee of work make budgeting week to week difficult, but the lack of “mutuality of obligations” between the parties means that individuals do not qualify as “employees” and so are excluded from the majority of employment rights under the Employment Rights Act 1996 (‘ERA 1996’).

These issues show the extent to which the frameworks that underpin employment law have become detached from the realities of the modern labour market. The series of tests that distinguish between employees and workers have become arbitrary and socially regressive, creating false dividing lines between people on the basis of their status in society rather than any economic or practical reasoning.

According to the CIPD’s report, published in August, those working on zero-hour contracts are disproportionately likely to be women working in low paid, low-status jobs in the public sector or in retail. For too many of the most vulnerable workers, the ability to claim basic rights is being curtailed unnecessarily and is in urgent need of reform. Because they are not treated as “employees”, many workers are unable to claim sick pay, unfair dismissal, maternity and paternity leave and a whole host of other rights.

In Little v BMI Chiltern Hospital for example, a hospital porter who had worked between 20 and 30 hours per week on a shift system at a hospital for sixteen years was found to be unable to claim unfair dismissal because a clause existed in his contract allowing his employer to send him home during shifts if there was lack of demand.

This problem was recognised by the Labour Government in the 1998 White Paper Fairness at Work. It argued that in light of the increasing use of zero-hour contracts (then at 200,000) “in the interests of both employers and employees, greater flexibility in both working patterns and contracts must be reflected in employment legislation”. It suggested replacing the tests for the existence of a “contract of employment” in the Employment Rights Act 1996 with those used to determine who is a “worker” under the National Minimum Wage Act 1998. In the Employment Relations Act 1999 at s23 a proviso was created to allow the Secretary of State to confer rights to individuals on this basis, but was never used.

Using the National Minimum Wage Act definition of a “worker” to equalise rights across different sections of the workforce would benefit those working under atypical employment arrangements. In particular, those on zero-hour and agency contracts are often highly reliant on their employers for work, despite not being covered by the ERA 1996. Changing their status to employees would not give them guaranteed hours, or remove the flexibility inherent in such arrangements, but it would give them recourse to basic protections at work when something goes wrong. In recent years there has been a move by the Employment Appeal Tribunal to attempt to designate some of these atypical workers as employees by looking at the course of dealings between the parties (as in Pulse Healthcare v Carewatch Care Services). However these attempts are narrow in scope due to the weight of case law with regards to mutuality of obligations which dictates against the expansion of the category of employees (see Carmichael v National Power).

When Labour returns to government in 2015, addressing these issues should be made a priority. As Elias J noted in Consistent Group Ltd v Kalwak, if the position regarding employee status is not changed: “Armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.”

While an employment tribunal may be wary of attempts by employers to do this, with tribunal fees and greater barriers to workers taking their case to court, the majority of abuses will never make it to a hearing. If the law is not changed to unambiguously give zero hours contract workers access to basic employment rights, unscrupulous employers will increasingly take advantage of the loophole provided to them by the restrictive definition of a contract of employment.

Ed Miliband is right to focus Labour’s attention on the cost of living crisis affecting families across the country. However, if he is serious about changing the rules of the game to favour those who work hard for diminishing returns, the next Labour government will seek to reform employee status so that vulnerable workers are given the basic employment protections designed to provide security and dignity at work.

Gus Baker is an Employment Advisor at BECTU, the media and entertainment union and is an Exhibition Scholar of inner temple.

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Labour Lawyers v Conservative Lawyers debate:

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“THIS HOUSE DEPLORES PROPOSALS TO END BENEFITS FOR THE UNDER 25s”

CHAIRMAN – JEREMY CLIFFE

The Economist’s UK Politics Correspondent

The Society of Labour Lawyers will propose the motion. The Society of Conservative Lawyers will oppose it.

The Society of Labour Lawyers speakers are:

Lisa Nandy MP, Shadow Minister for Civil Society.

Sheila Gilmore MP, Work and Pensions Select Committee.

Lucy Anderson, London Labour MEP Candidate.

Tuesday, 3rd December 2013.

7.00pm (reception), debate to start at 7.30 pm (following the SLL AGM)

MacmillanRoom, Portcullis House,

Palace of Westminster (entrance via Portcullis House Entrance)

This event and refreshments are free of charge. If you have any queries, please contact Richard McLean. mcleanrichard@hotmail.com

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Notice of Society of Labour Lawyers AGM

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AGM 2013
3 December 2013
6.00pm, Committee Room 19,
Upper Committee Corridor
House of Commons
London

To be followed by the Society of Labour Lawyers vs Society of Conservative Lawyers Debate at 7pm in the Macmillan Room, Portcullis House:
“This House deplores proposals to end benefits for the under 25s”

Elections
The following positions will be elected at the AGM:

  • Chair, two Deputy Chairs, Secretary, Assistant
  • Secretary (Membership) and Treasurer
  • Seven members of the Executive Committee
  • Delegate to Annual Conference

To stand for election a written nomination signed by two members of the Society and containing the written consent of the person nominated must be sent to the Secretary, Catherine Atkinson, Chambers of Andrew Ritchie Q.C, 9 Gough Square, EC4A 3DG, catkinson@9goughsquare.co.uk by no later than Tuesday 19 November 2013.

Election will then be held at the AGM by secret ballot.

Any member who cannot attend the AGM, but that would like to vote in any such ballot shall notify the Secretary by post or email well in advance of the AGM.

Motions
Any member of the Society wishing to move a motion at the AGM shall give written notice, incorporating the terms of the motion and signed by the proposer and seconder (being also a member of the Society) by no later than Tuesday 19 November 2013.

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Event: Access to Justice panel

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Wednesday 30th October, 6-8pm, Committee Room 05, in Parliament

Speakers: Andy Slaughter MP, June Venters QC, Matt Foot and Roger Smith OBE

Chair: Andrew Dismore AM

Hosted by the Society of Labour Lawyers and Young Labour Lawyers

Open to all

This September, the civil rights barristers at Tooks Chambers (including Michael Mansfield QC) shut up shop, “as a direct a result of government policies on legal aid”. The Coalition’s reforms are making it harder than ever to access the courts and seek legal redress. Cuts to criminal legal aid loom on the horizon. Civil legal aid has been cut for all but a handful of cases. LASPO and the Jackson reforms have removed claimants’ rights, and Government changes to the small claims limit will make things worse. Employment tribunal fees have been introduced, making it harder for employees to hold companies to account over unfair dismissal, harassment or discrimination. The government has vowed to limit judicial review use, too.

Are ordinary people being priced out of legal protection? How are legal aid cuts and tribunal fees stopping people seeking justice? And what can the legal community do about it? Come and join our panel of passionate believers in legal aid, and discuss what is going wrong with access to justice.

PANELISTS: Andrew Slaughter MP is the Shadow Justice Minister and MP for Hammersmith. Before becoming MP he was a practicing barrister at Bridewell Chambers. June Venters QC is a solicitor advocate who founded the law firm Venters Solicitors in 1991 and set up her own pro bono surgery unit in 2009. Matt Foot is a Criminal Defence solicitor and a co-founder of the Justice Alliance. Roger Smith OBE is a solicitor with expertise in access to justice issues, who now writes about the legal profession.

NOTE: Please enter the House of Commons through the Cromwell Green entrance and please allow up to 30 minutes to clear security. The entrance is highlighted in this Parliament map: http://www.parliament.uk/documents/facilities/maps/colmap1.pdf

This invitation is extended to all who are interested in access to justice – not just SLL and YLL members.

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Local Government on the Edge

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Ian Adderley asks if it is time to give local government constitutional footing

Local government has been a political football kicked from pillar to post for at least the last 50 years. It is fair to say it has had a rocky relationship with central governments (of all political persuasions, but I believe it has suffered the most under the Conservatives) both under Thatcher and her heir Cameron, with the help of his favourite chum Eric Pickles. However, leaving party-politics to one side for now, the key issue is whether local government should be given constitutional recognition.

Some may be surprised to learn that local government is not recognised in our constitution. Theoretically it could be abolished by simple-majority votes in Parliament. And as for local authorities individually – well you only need to look at the history of the Greater London Council (GLC) and others to see how, with such ease, they can be wiped from statute books.

This should cause concern. Local government can be, and so often is, a force for good. From the basics of bin collections and street cleaning, to the complex provision of adult social care, council housing, and – as was seen not so long ago – riot recovery, local government is there for people.

And what’s more, local government is democratically and locally accountable. Control of councils can and does change. We’ve seen at the centre of local elections issues such as free healthy school meals, refuse collection, and privatisation. I do accept the low turnout in many local elections is an issue that needs to be addressed, but that problem is not insurmountable and can be discussed elsewhere. The underlying point remains true: local authorities are democratically and locally accountable.

Local authorities remain democratically accountable whilst delivering a wide array of services – some managing multi-billion pound budgets. Local authorities deliver these services, and manage these budgets, on top of a foundation made up of:

  • a funding settlement directed by central government subject to change with political whim;
  • statute which can be changed by Parliament (or ministers) at short notice (I’ll come on to the ‘General Power of Competence’ shortly);
  • ever changing government policy. To say this is an unstable footing is putting it mildly.

With so much uncertainty and restricted ability to forward plan, the fact local authorities still exist and operate with legal budgets is testament to their ability.

Some may think that the General Power of Competence’ (GPC) – introduced by the Localism Act 2011 solved all of these problems. Broadly speaking it gives councils the ability to “do anything individuals may generally do”. Surely now councils can just get on with things, no longer looking for individual positive powers? Surely now the risk of political interference is limited?

Leaving aside the fact the GPC has been spun to seem more significant than it is, the very construction of the power encapsulates the need for a constitutional footing for local government in one subsection.

Section 5(3) of the Localism Act states: “The Secretary of State may by order make provision preventing local authorities from doing, in exercise of the general power, anything which is specified, or is of a description specified, in the order.” Like so much of the Localism Act a great deal of power is relayed back to the Secretary of State, Mr Pickles (with his somewhat dubious track record in local government…).On the one hand a general power, but on the other, the ability for one minister to restrict that power almost in an instant.

And it is that conflict, the imbalance and uncertainty, which points toward the case for local government to be given a surer footing: a constitutional footing.

The Local Government Association along with Graham Allen MP, in a paper published last year – Independence from the Centre: does local government’s freedom lie in a new constitutional settlement, - explored the same idea. The report looked at Italy, Germany, France, Spain and Sweden – all of which enshrine some form of local-self government in their constitutions. And importantly the paper looked at the funding relationship between central and local government, and the need for financial independence.

Unfortunately, these issues have not received wider debate and discussion within the legal community.

Local government is in a dangerous position. Funding cuts have left some councils balancing precariously close to the edge. Councils are teetering on the edge not because of their actions but because of government ideology and policy. A government that has tried to dictate everything from council tax rates to policies on bin collection. This is a government that, contrary to ministers’ warm words about localism, pushes the odd combination of central diktat coupled with local responsibility. It would seem great responsibility no longer comes with great power.

This call for a constitutional footing could have been just as viably made at any time over the last few decades; however we face a new found urgency. So now we should discuss the next steps.

In writing this short article I don’t purport to provide the detailed solution and answers, and nor do I suggest that a constitutional footing for local government in isolation solves the dire funding situation faced by local authorities. But I hope to provoke debate, discussion, and response.

Ian Adderley is editor of Justice for All

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Protecting Victims

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Vera Baird warns that the early deletion of DNA evidence will reduce rape convictions.

Thousands of pieces of evidence are likely to be deleted from the national database under Home Office orders to scrap the DNA of people who have not been charged. Changes to take effect from October 2013 looked set to limit this destruction to protect sexual assault victims who need DNA comparisons with earlier attacks as supporting evidence for them. This early deletion of DNA is opposed by the Labour Party but we must step up the arguments or we will find that the number of rape convictions, already small in comparison with other offences, gets even lower.

The Crime Survey for England and Wales identifies an average of 85,000 rape victims a year. Recent research in the North East, shows that 89% of people who report sexual assaults to the police do not achieve a conviction. There is a welcome increase both in the numbers of people reporting sex offences to the police and in the convictions from cases that get to court. But the fallout rate, between report and court is increasing. Inherent difficulties in testifying in such cases act as a deterrent.

Sexual offences can be traumatising, making the victim feel shame and guilt. Giving evidence about intimate abuse can be deeply humiliating. The same shame and guilt that can weaken testimony may have caused a complainant to hesitate in reporting. Yet delayed complaints are easily alleged to be false. Often victims are picked by attackers because they are vulnerable already. The courts’ reputation for putting people on trial about their earlier sexual conduct survives, notwithstanding restrictions on admitting previous sexual history were introduced in 1999.

The lack of confidence this breeds is made worse by the inadequate sentencing of guilty men such as Stuart Hall and by events like the recent crass assertion, by prosecuting counsel, amazingly accepted by the judge, that a 13 year old girl, who had been sexually abused, contributed to the like the recent crass assertion, by prosecuting counsel, amazingly accepted by the judge, that a 13 year old girl, who had been sexually abused, contributed to the crime by being “predatory”.

Convincing complainants to testify is therefore difficult and achieving a conviction in reliance on a witness whose confidence is low is also hard, especially if they are the only witness for the Crown. Professor Marianne Hester’s recent study of rape cases in the North East shows that the only kind of sexual offence case in which the number of convictions is increasing are those in which more than one victim testifies against the defendant.

Much sexual abuse is committed by serial offenders – as Savile, Hall and thousands of others have demonstrated. Police therefore check DNA samples against the DNA national database, which currently includes samples taken from unconvicted former suspects. Granted the high fallout rate between report and court that is a large body of men.

A DNA match to an earlier allegation will trigger police to contact that complainant to say that their alleged rapist is being accused again. Many people who cannot go to court for themselves will testify to help others and to protect future victims. Although police have to manage such communications carefully, if the earlier accuser is prepared to testify, the new complainant is likely to do so too. That can produce the kind of multi-victim testimony which Professor Hester demonstrates is the hallmark of the cases likeliest to succeed.

Many serial rapists target people who are already vulnerable. They are easy prey and unlikely either to go to court or to withstand cross-examination if they do. As Director of Public Prosecutions Keir Starmer recently said, they are vulnerable to being victims through the same characteristics that make them vulnerable to having their case dropped by the justice agencies. Finding supporting evidence may be the only way to get such people justice.

Clearly DNA matching can continue with the samples from convicted men but destroying that of earlier suspects weakens the odds of getting serial offenders convicted.

Police retain many other kinds of intelligence about unconvicted people and it seems illogical to pick this kind for deletion, when the offences are particularly injurious and conviction especially difficult.

There ought to be an extremely high threshold, such as that someone else has been convicted of the earlier offence, before Chief Constables use the Early Deletion Process. And yet the government is ordering a rush to delete before new guidance is implemented in October. We will lose critical DNA which could support future successful convictions. The Government needs to act to increase the confidence of victims and serve the public interest by reversing its current position.

Revised guidance in response to the Protection of Freedoms Act 2012 which will be implemented in October 2013 respects this need to protect civil liberties whilst ensuring a high threshold of evidence, such as another person being convicted of the offence or where it has been established that no crime was actually committed, prior to early deletion of DNA evidence meaning that we will not in the future lose critical DNA which could support future successful convictions increasing confidence of victims.

Vera Baird QC is the Labour Police and Crime Commissioner for Northumbria

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London Mayoral Matters

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Lucy Anderson on the Labour leadership’s proposals for selection by primary

In his recent speech, Ed Miliband announced a proposal that, “for the next London Mayoral election Labour will have a primary for our candidate selection. Any Londoner should be eligible to vote and all they will need to do is to register as a supporter of the Labour Party at any time up to the ballot”.

The idea of primaries for Labour selections has been under discussion for some time, and has been criticised by some, particularly for potentially undermining the Party’s representative and democratic nature and structures. However, holding primaries has been praised by others as a means of increasing participation and trust in politics and promoting Labour values more widely.

It is true also to say that the Labour Party membership, whether as individuals or affiliates, has not been properly consulted about primaries. In 2011, the issue was effectively flagged up in the Refounding Labour consultation and certainly featured in some responses. But the initial Refounding Labour consultation document was vague, merely asking the “Big Question”: “How can we engage more people in Labour decision-making? How can we widen participation in Labour elections?”

What everyone within the Labour movement would probably agree on is that the London Mayoralty is a very important political position and that this is not an experiment we can afford to get wrong. It is therefore important that we start to focus immediately on exactly what detailed rules and procedures should be put in place for the primary to select a Labour candidate for London Mayor in 2016.

Some of our socialist sister parties in Europe have already been using primaries. In the French  presidential election in 2011, over two million non-members of the French Socialist Party took part in the primary for the election subsequently won by François Hollande. The success of the primary stage is widely believed to have assisted Hollande’s narrow victory in the final election.

At European Union level, the Party of European Socialists is planning to hold a process similar to a primary in order to choose their candidate for European Commission President in 2014. Full details of the process should be available by the end of 2013 but, according to a PES resolution, voting by PES member parties and organisations is flexible as long as members are “consulted” and the result is “ratified by a democratically-elected” body. Campaigners within the PES are pushing for these votes to be as open as possible.

A key issue for the London Labour Party as a whole now is how to ensure that the Labour Party National Executive Committee approves procedures for the Mayoral selection that are fair and hopefully command the support of most members. Changing the procedures does not require a national rule change. Chapter Five, Clause VI, Para 2 of the current rules states that the NEC shall, “draw up detailed procedural guidance with respect to selections for the Greater London Authority…” The Rules go on to specify that a London selection board will administer the process and will be “representative” and reflect a balance of CLPs and affiliates. The procedures and timetables must be agreed with a designated officer approved by the NEC.

Absolutely critical concerns are the eligibility rules and any nomination process, and following on from that how long-listing and short-listing will be carried out. The current Parliamentary selection procedures go into great detail about such issues. Most members will want Party units and affiliates to have nominating rights, and this would also act as a safeguard on the quality of candidates. In the French Socialist Party presidential primary, potential candidates had to attract the support of at least 5% of  any one of five different constituencies within the Party. The PES Commission President procedures require that a potential candidate must be nominated by a PES full member party or organisation and be supported by 15% of PES full member parties or organisations.

Another central issue is whether “registered supporters” should pay a small charge to participate and whether they should get exactly the same weighting of votes as a full member. Currently, under the Rules registered supporters will only get 3% of the electoral college votes in any election for Party Leader or Deputy Leader and only when they number at least 50,000 in total. This is unlikely to happen any time soon.

It would certainly seem sensible to charge a minimal amount to cover costs of a London Mayoral Primary, especially given the need to conserve Labour Party finances generally. In France, participants were charged one euro each, which is unlikely to have constituted a significant deterrent from participating.

Another issue that most would agree with is that using first past the post as a system for selecting a Labour candidate for London Mayor would not be appropriate because it could lead to extremist candidates being selected with a relatively small share of the vote, depending on the number of candidates standing. Some form of proportional representation seems essential, although having more than one round of voting as in the French primary would be more costly and would lengthen the process, possibly putting pressure on participation and turnout.

Whatever emerges next in the process of choosing a Labour candidate for London Mayor, the majority of activists in London would argue that we should do so as soon as possible, and certainly not wait until after the 2015 general election. Nevertheless, it is vital that the process and the eventual candidate have a proper mandate. To this end, it is to be hoped that the leadership and NEC will consult and listen to those who represent London members and affiliates, and take the proposal forward as soon as possible on the basis of an agreed consensus.

Lucy Anderson is a Labour MEP candidate for London and a London Regional Representative on Labour’s National Policy Forum.

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Legal Aid: Beginning and Ends?

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David Marusza examines the history of legal aid and its role in democratic society

Practitioners who read this publication cannot fail to be aware of the significant proposed changes to legal aid in the consultation document published by the Ministry of Justice in April 2013 – Transforming legal aid: delivering a more credible and efficient system. The consultation ended on 4 June 2013 but a ministerial U-Turn by Chris Grayling means that the proposals will be once again consulted on in September 2013.

It is tempting to wonder what the great left-wing commentator and author George Orwell might have said not only on the use of the word ‘transforming’ in the consultation document but also upon the function of the Ministry of Justice. Both seem to exhibit the hallmarks of the disingenuous “double think” of Nineteen Eighty-Four’s Airstrip 1. That might seem a bold assertion, but given the MoJ’s proposals seek to assault access to justice, a defensible one. The original consultation document proposed:

  • Competitive price tendering for contracts for criminal legal aid.
  •  Not allowing defendants a choice of solicitor save in exceptional circumstances. The effective incentivising (in all but name) of guilty pleas through changes to barristers’ remuneration.
  • Reducing the fees of experts in criminal and public law family cases(private law family cases having had their funding withdrawn under Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) experts whose evidence is often fundamental to establishing the case for the defence or the question of a child being taken into care.
  • Specific concerns have been raised regarding the completive tendering provisions risking “advice deserts” in rural areas (eloquently voiced by the North Wales firm Tudur Owens Roberts Glynne & Co to the Justice select Committee on 11th June 2013 at an evidence session).

The predictable scapegoats in the consultation paper are ‘fat cat lawyers’ referred to in the Ministerial Preface as “…cases which run on and on racking up large fees for a small number of lawyers”.

In the context of this rhetoric it is worth turning to the history of legal aid.

Post war settlement

Legal aid in this country was born with the Legal Advice and Assistance Act 1949 as part of the post war settlement established by the Attlee government. It was based on the recommendations of the Rushcliffe report and was a close contemporary of the National Health Service Act 1946 and the Beveridge reforms to social security, building upon the earlier work of Lloyd George’s government.

The important point of the Rushcliffe report was that legal aid was to be available in criminal and divorce matters both to the genuinely poor in society and to the less well-off. The reforms were enacted by means of a civil scheme in 1950 and a criminal scheme implemented between 1952 and 1963.

In 1988 the Legal Aid Board was created, in order to end the perceived conflict of interest inherent in the scheme being administered by the Law Society. The Access to Justice Act 1999 created the Legal Services Commission, the body now tasked with administering payments to lawyers undertaking legal aid work.

In 2012, LASPO drastically cut access to legal aid and remuneration to those practising it. All private family law apart from cases in which domestic violence is in issue was exempted from legal aid. Anecdotally, this has resulted in a considerable increase in litigants in person, which has lengthened cases and strained scarce resources in the Courts system.

Voices of dissent

The consultation has attracted vocal and weighty criticism from many quarters. Lord Neuberger took the unusual step of commenting in Counsel magazine on the proposals in April 2013 that, “People will feel like the government isn’t giving them access to justice in all sorts of cases…and that will lead to frustration and lack of confidence in the system, or it will lead to people taking the law into their own hands.” Similarly, the former Master of the Rolls, Lord Woolf, told the Independent newspaper in July that the proposals would result in “a factory of mass produced justice” and “miscarriages of justice”. He continued “Once the damage is done it will be very hard to put it right.” The proposals have also been the subject of trenchant criticism by Maura McGowan QC, Chairman of the Bar and by the Bar Standards Board. They have also been the subject of criticism by the Law Society Chairman, Lucy Scott-Moncrieff.

There has been particular focus on the ill-conceived idea of competitive price tendering (do we really wish those most in need of justice, subject to potential imprisonment, to get the cheapest possible legal advice and representation?). As Maura McGowan has stated “Our arguments centre on the role of the justice system in the civilised functioning of society.”

Soft targets

Legal Aid (and lawyers) will always be soft targets for a government wedded to the pursuit of indiscriminate cuts. No one is so foolish to suggest that no cuts are necessary. However, there must be some discrimination in the cutting. It is a source of optimism that the assault on legal aid has to some extent been routed, pending further consultation in September.

The right to legal access for all is a basis underpinning the rule of law in a democratic society. It is a necessary shield for the vulnerable, the poor and the dispossessed against the risks of miscarriages of justice or other prejudice as a result of having been unprepared for litigation. That was recognised by the enlightened reforms of the Attlee administration as far back as 1949. In cutting it too far, any government risks irreparable damage to the interests and lives of litigants and defendants. Any prospective Labour government should and must take an active interest in this central plank of our society, or risk irreparable damage to justice.

This article first appeared in Justice for All.

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