INTERVIEW: Last Monday was Access to Justice Day, the Law Society’s latest legal aid campaign. Andrew Caplen, the Society’s new president, plans to put the issue at the heart of his year at the helm of Chancery Lane.
‘My major theme for the year is to try and restart the argument again,’ says Caplen. ‘This time I think we’ll get a better hearing. I think there is a wider concern out there as to what now happens to legal aid.’ Sceptical legal aid lawyers will wonder what kind of hearing Chancery Lane, or indeed anyone, received in the run up to the bulldozer that was LASPO.
The latest legal aid campaign is pitched as being in defence of the rule of law in ‘an environment where legal advice is becoming more expensive and difficult to obtain’. Political conference season is almost upon us and, of course, there is an election looming. The Law Society will launch a ‘justice’ manifesto at next week’s Labour conference. ‘Some of it will be about the value of legal services to the UK trade and industry,’ says Caplen. ‘But also it will be about the need for the government to take a proper view on access to justice. Next year marks the 800th anniversary of Magna Carta. What use is the rule of law, if you cannot have access to justice?’
Lawyer-assisted access to justice
The Law Society’s latest access to justice campaign has three objectives: to amend LASPO; to explore ‘innovative ways’ for its members to make services more available to the public; and (in their words) to raise public awareness of ‘lawyer-aided access to justice issues’.
So, is the Law Society not interested in non-lawyer-aided access to justice issues? ‘I am an idealist,’ says Caplan, who chaired the Society’s access to justice committee for four years. ‘I came into the law because I wanted to change the world, like many of my peers. But we are a representative body. We consider our members are best-placed to give advice where advice is needed.’
As Chancery Lane has pointed out, the LASPO cuts have meant that some 600,000 people lost access to the civil legal aid scheme. There are ‘many different facets to the access to justice debate,’ continues Caplen. ‘One of the most important aspects is the ability to have a lawyer to represent you. We consider it should be a right for everybody in circumstances where lawyers are needed and our members are the best people to do that.’
The week before Access to Justice Day and Chancery Lane launched a major PR campaign urging the public to ‘Use a Professional. Use a Solicitor’. So whilst the Society urges the public not to scrimp on their legal advice, it seeks to expose the impact of the government’s legal aid cuts. ‘The growth of unregulated and do-it-yourself legal services means consumers are exposed to non-professional advice, which can be more of a hindrance than a help,’ Caplen explained at its launch.
Surely such a message seems at odds with the call by the Legal Services Board chair Sir Michael Pitt only this month that the growing army of ‘McKenzie Friends’ be seen as a ‘legitimate feature’ of a post-LASPO legal services market?
‘One could say that McKenzie has an awful lot of friends now,’ says Andrew Caplen, who gave evidence to the House of Commons’ justice select committee on the issue. ‘There is a difference between real McKenzie friends stepping in to help someone and someone charging services. That person would be unregulated, unqualified, not subject to disciplinary standards and with no professional indemnity insurance.’
Caplen began his legal career as an articled clerk with Abels in Southampton, a firm with a strong commitment to legal aid work. The lawyer was still on the rota as a duty solicitor when he became the Law Society’s deputy vice-president two years ago. He co-authored the Society’s 2010 Access to Justice Review.
‘We knew then the government was going to look again at cuts to legal aid,’ he recalls. ‘We argued that, if they were going to look at savings, cutting lawyers’ fees was the wrong way of going about doing it. They should be looking at the efficiency of decision-making and looking for other ways in which funding can come into the system. We even looked at QCs’ fees.’
Chancery Lane identified VHCCs (very high cost cases) as the one area of work where it was ‘very difficult to justify current rates of payment’. (‘The fact that it is possible for such advocates to earn in excess of six times the salary of the Prime Minister is unjustifiable,’ the Society said.)
But did the Society’s review ever get any traction? ‘It influenced the Law Society policy coming into LASPO. In many ways, the Law Society succeeded in its negotiations over LASPO which they hadn’t done before. We actually started to get the public behind us.’
Obviously LASPO, when it came, was a wipe-out. That said, a small number of significant amendments were made but they were around the edges.
Caplen argues that the LASPO campaign ‘reached across, so it was not just lawyers getting support for what we were trying to do’. There will be many commentators who would take issue with that. The former chief executive Des Hudson called Sound off for Justice ‘a hearts and minds campaign’ which won only ‘small changes’. He argued that a similar approach to crime would have allowed the government to dismiss their arguments as ‘the noisy protests of a vested interest’.
What did Caplen make of Hudson’s strategy of ‘engagement’ with the MoJ which, of course, led to a vote of no confidence in his leadership? ‘Everyone makes their own decisions as to what is the most successful approach at the time,’ Caplen answers carefully. ‘What is right for one moment in time is not right for another.’
‘My view is that we have a situation now where legal aid has been cut as far as it possibly can and the only way we can get more funding – and I cannot see millions coming in – or changes, whether it is legal aid or other access to justice services, is by winning the case in the public domain.’
The evidential burden
And how do they do that?
‘We are lawyers – we must not forget that – the way lawyers manage to swing cases is by evidence and fulfilling the evidential burden. What is going to be important is that we provide, not just anecdotal evidence, but proper evidence as to the effects of LASPO.’
The Law Society is looking at commissioning (with other groups) major research on a scale with Pascoe Pleasance’s Causes of Action: Civil and Social Justice published in 2004. That was the research that made the case for a seamless approach to legally-aided advice in response to ‘problem clusters’, multiple problems experienced simultaneously by the same person.
It is also looking to add to the evidence base about the the hurdles now imposed on the victims of domestic violence before they qualify for legal aid. The Society is also concerned that women are having the values of their homes taken into account in determining whether they are eligible leaving them with ‘an unaffordable contribution to make’.
Finally, how are things with defence lawyers? The morning that the Law Society launched their Access to Justice Day, a challenge to the Transforming Legal Aid reforms began in court. The judicial review was brought by the London Criminal Courts Solicitors’ Association and Criminal Law Solicitors Association.
Bill Waddington, LCCSA chair, recently complained that the powers-that-be at Chancery Lane were doing their ‘level best to persuade council members not to offer financial help’ because they were concerned that it would ‘compromise the Law Society’s relationship with the MOJ’.
Andrew Caplen confirms the Chancery Lane has agreed to contribute £45,000 to the challenge. ‘That’s quite a significant sum,’ he says. ‘It expresses the concern that members of council have for the dire situation criminal legal aid practitioners find themselves in.’
The Law Society argued that the ‘key to market sustainability’ in the defence profession was consolidation which put them at odds with much of the rest of the profession. The CLSA/LCSSA reckon that the plans will ‘bring about the closure of (at least) hundreds of businesses which have been built up through conscientious public service over many years’.
What’s Caplen’s view? ‘I have two great concerns: the impact for the quality of justice in this country and for the members of our profession who for many years have not received any increase in fees and have had a reduction in fees forced upon them,’ Caplen says. In the JR, it was argued that the Lord Chancellor failed to disclose two critical reports on the economic health of the sector (the Otterburn and KPMG reports).
‘The evidence of the Otterburn and KPMG call into question whether the market can survive the fee cut,’ says Caplen. ‘It is going to have difficulty surviving the cut that has already happened and which is now starting to bite. It seems clear the market is too fragile.’
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