LIBERAL DEMOCRAT
LAWYERS ASSOCIATION
Candidates' Briefing
On Issues Considered by the Liberal Democrat Lawyers Association during the 2001-2005 Parliament
1. Human Rights
2. Crime, Punishment and the Criminal Justice system
3. Civil Legal Aid
4. A New Supreme Court
5. The Appointment of Judges
6. A Department of Justice
CANDIDATES' BRIEFING ON ISSUES CONSIDERED BY THE LDLA DURING THE 2001 – 2005 PARLIAMENT
EXECUTIVE SUMMARY
This briefing is a publication of the Liberal Democrat Lawyers Association.
The party's General Election Manifesto 'The Real Alternative' is the Liberal
Democrat programme for government. It has been drawn up by the Party's Federal Policy Committee in consultation with the Parliamentary Party, as a fully costed and affordable package. It is this set of policies on which the party
fights the election and which a Liberal Democrat government would be
committed to introduce when in power.
This briefing is intended to help candidates in the current debate on a number of legal issues on which the Liberal Democrat Lawyers Association has developed policies. They focus on justice and the rule of law, which underpin a democratic society.
Human Rights
For Liberal Democrats, human rights are the bedrock of our political values. The Human Rights Act has been an important success, for which the Liberal Democrats have long campaigned. It is fundamental to the protection of our liberties. Human rights are for everyone.
We need to make the Human Rights Act real to our communities. More should have been done to promote and secure human rights in practical terms in
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Include human rights education within citizenship training in schools
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Establish a Human Rights Commission, possibly combined with an Equalities Commission.
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Pass a single Equalities Act, more effective than the legislation introduced by Labour but lost on the dissolution of Parliament
·
Encourage local authorities to appoint Human Rights Officers
·
Initiate a public education campaign on human rights, including schools, training programmes for public officials, and leaflets for the public
Crime, Punishment and the Criminal Justice System
Crime and the fear of crime are real problems in our society and there are no easy solutions. Issues of addiction, anti-social behaviour, violence, sentencing and rehabilitation all need to be tackled. The public should be protected from dangerous criminals with prison sentences, but prison should be a sentence of last resort. The prison service must aim to rehabilitate offenders, yet our prisons are becoming dangerously over-crowded academies of crime. Recent criminal justice legislation has been increasingly threatening the right to a fair trial. Our court processes must be fair and legitimate.
In summary we propose:
On Crime and Policing:
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10,000 more police on the beat
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More use of technology by the police
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More support for neighbourhood wardens and community support officers
On Drugs and Alcohol
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Establishing a standing Drug Commission to advise on drugs policy
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Cracking down on irresponsible publicans and licensees
On Dealing with Offenders
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Reforming anti-social behaviour orders (ASBOs) to concentrate on the behaviour of offenders
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Facilitating restorative justice for minor offenders through Community Justice Panels
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More community sentences as an alternative to custody, monitored by tagging where necessary
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Compulsory numeracy, literacy and communication courses in prisons
On the Criminal Justice System
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That jury trials should be protected
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That recent changes in the law allowing hearsay and evidence of previous convictions should be repealed
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A codified criminal law
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A more diverse magistracy
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Keeping Magistrates Courts close to the communities they serve
Civil Legal Aid
Legal Aid is essential to achieve access to justice. Civil legal aid, which helps the poorest and most vulnerable in society with problems over their income, homes and families, is under increasing threat. The result is that many part of the country are becoming advice deserts with local solicitors and advice agencies no longer providing legal aid services. Our policy is that:
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Adequate funding should be ensured for civil legal aid;
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The civil legal aid budget should be ring-fenced, so that it is not constantly used up by the demands of criminal defence work and immigration and asylum applications;
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The bureaucracy and contracting system of the Legal Services Commission should be reformed, to reduce time-wasting targets, form-filling and costly audits, and instead introduce flexible service level agreements which can link up with local authority funding;
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Crude case rationing should be abolished;
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Legal Aid pay rates should be set by an independent review board, and the quality of legal aid work monitored through peer review;
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Legal Aid should extend to tribunal cases and alternative dispute resolution;
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The advice sector should be encouraged , with networks of cost effective call centres, community justice centres and outreach projects;
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Claims companies providing services under no-win no-fee arrangements should be regulated.
The New Supreme Court and the Appointment of Judges
The independence of the judiciary is central to freedom in our society. We support the creation of the new Supreme Court and Judicial Appointments Commission, both to be established under the Constitutional Reform Act 2005, passed just before Parliament was dissolved. We would like to see a larger panel of permanent Supreme Court judges and no reserve panel. Supreme Court judges should not generally be appointed to the House of Lords. The Supreme Court should generally sit in panels of 5, though sometimes the entire court should sit together. There should be more diversity among judges, without sacrificing merit. A more flexible career structures for judges should be introduced. Lawyers with family responsibilities should be able to sit as part-time judges.
A Department of Justice
Finally, a Liberal Democrat Government would establish a Department of Justice, headed by a cabinet minister, combining the relevant functions of the Department for Constitutional Affairs and the Home Office.
Introduction
This document is not intended to be an exhaustive account of Liberal Democrat Policy on legal issues. It is, however, intended to be a helpful summary of the position of the Liberal Democrats as a party and the Liberal Democrat Lawyers Association in particular on a number of important issues facing the country at this election concerning the administration of justice and the rule of law. The issues covered in this paper are as follows:
1. Human Rights
2. Crime, Punishment and the Criminal Justice System
3. Civil Legal Aid
4. A New Supreme Court
5. The Appointment of Judges
6. A Department of Justice
These are all issues on which the Liberal Democrat Lawyers Association has undertaken considerable work in research and policy development over the course of the last Parliament. The paper contains a summary of the Association's considered views in each of these areas. The policies on human rights, criminal justice, civil legal aid and a Department of Justice have largely become party policy as a result of motions passed by the Liberal Democrat Conference. The policies on the new Supreme Court and the appointment of judges formed the basis of the Association's response to the consultation that preceded the Constitutional Reform Act.
It is intended that this paper should be of assistance to parliamentary candidates in dealing with legal issues raised with them by the electorate and interested bodies. It is hoped that the paper will also be of interest to the legal profession as a whole and to the specialist and general press.
1. Human Rights
The Human Rights Act 1998, for which the Liberal Democrats campaigned long and hard, “brought rights home” by enshrining the European Convention on Human Rights into British law. It has been a very important force for good and a protection against an increasingly authoritarian style of government. The House of Lords' decision that the detention without trial of suspects in Belmarsh was illegal and incompatible with the Act was the most important civil liberties decision by a court for Many years. The central theme of the Act is that human rights are for everyone. So it is disappointing that politicians from the old parties are fostering the perception that the Act is only a tool for use by minorities and other interest groups. It is also regrettable that in the five years since the passing of the Human Rights Act little progress has been made to promote and secure human rights in
The Government has shown little regard for citizens' rights in many fields, particularly in its proposals for the criminal justice system, in its reduction in the scope of civil legal aid and in its treatment of asylum seekers. All too often the providers of public services in
Liberal Democrats believe that to achieve a truly free society in
a)
citizens know and are able to enjoy their rights under the Human Rights Act, subject to the rights of others and the general interest of the community;
b)
government officials at national and local level understand comply with their obligations to treat citizens in accordance with those rights and
c)
citizens are able to enforce those rights without undue difficulty, delay or expense.
A Liberal Democrat Government will give effect to the recommendation by the Parliamentary Joint Select Committee on Human Rights to set up a Human Rights Commission, possibly combined with an Equalities Commission. We will also introduce a single Equality Act to bring together, rationalise and strengthen the legislation on discrimination on grounds of race, gender, disability, Our bill would also outlaw discrimination on grounds of sexual orientation, and religious belief. This would be along the lines of the Bill promoted by Lord Lester in the last Parliament, which was passed by the Commons but was lost for lack of government support. The subsequent legislation introduced by the Government but lost on the dissolution of Parliament did not go anything like far enough in ensuring that the proposed Commission had the funding and the powers to be effective. It is essential, for instance, that in human rights cases, as well as in equalities cases the Commission is able to bring appropriate individual cases before the Courts.
Liberal Democrats believe that well run local authorities can play an important part in the development of a human rights culture and a Liberal Democrat Government will encourage all principal local authorities to take the following steps to promote human rights:
i)
the inclusion of human rights education within the teaching of citizenship in schools.
ii)
establishment of human rights training programmes for officials and the providers of public services within their local authority areas.
iii)
the production and publication of easily understood leaflets for distribution to the public and notices for display in public places, in particular in local authority offices and on the premises of the providers of public services, explaining citizens' rights under the Human Rights Act.
iv)
the appointment of an officer as Human Rights Officer for the authority with responsibility:
a)
to co-ordinate and run human rights training within the local authority area;
b)
to develop human rights awareness among members of the public;
c)
to act as a contact point to assist members of the public in the enforcement of their human rights;
d)
to ensure that the Local Authority itself complies with the Human Rights Act;
e)
to encourage other providers of public services within the local authority area to comply with the Human Rights Act;
f)
to report to the Local Authority annually on the exercise of the above functions.
2. Criminal Justice
(1) Crime and Policing
Crime has fallen overall in recent years, but crime rates and the fear of crime still remain unacceptably high. The effectiveness of the police is restricted by a serious shortage of police on the streets and is additionally hindered by their large bureaucratic workload and lack of access to the latest technology.
We propose in our manifesto 10,000 more police on our streets on top of Labour's plans, in addition to completing existing plans for an extra 20,000 community support officers to back them up. This increase in the policing resource is crucial if we are to make advances in the fight against crime at all levels.
However, Police officers should have access to and training in the latest information and communication technologies. This would create savings and free up officers for patrol duties, with less paperwork and greater access to information and communications technology.
.
(2) Drugs and Alcohol - Two Causes of Crime.
Drug abuse and drug trafficking cause crime. There is overwhelming evidence of a direct link between the increasing availability and use of illegal drugs and crime in society. Yet the prohibitionist approach to drugs over the last 30 years has failed. The UK has one of the highest rates of illegal drug use in Europe Crime associated with illegal drugs costs the UK £16bn a year, ranging from burglaries and robberies by addicts trying to feed their habit, to gun crime. Our record prison population is largely explained by the increase in imprisonment of drug offenders.
The current focus on criminal sanctions brings many young people, who would otherwise be law-abiding, into contact with both the criminal world and the criminal justice system, and it diverts large public resources which could be better used elsewhere.
The Liberal Democrat approach to reform of the drugs laws is about being effective to reduce the harm drugs cause society - beating the dealers, dismantling the market in illegal drugs, and helping addicts to break the cycle of drugs and crime.
Our policy of non-prosecution for possession, cultivation for own use or social supply of cannabis would shift police resources away from targeting the users to cracking down on the dealers and drug traffickers. In the longer term, we would seek to put the supply of cannabis on a legal, regulated basis subject to securing necessary renegotiation of the UN Conventions.
Liberal Democrats believe in helping to break the cycle of drug-related crime by providing more drug treatment places in prisons. Our policy will also free up money for education and treatment services, which will in turn cut the number of addicts. Liberal Democrats will establish a standing Drugs Commission to advise on drugs policy, with a remit extended to cover legal substances such as alcohol, solvents and tobacco, and requiring the Commission to carry out regular audits of drugs policy with major reports every five years.
We will combat illegal drug trafficking by introducing a new offence of ‘dealing' to allow more effective action against those proved to be supplying illegal drugs over long periods of time and by making the selling of drugs near schools and other sensitive locations an aggravating factor in sentencing.
By ending the use of imprisonment as a punishment for possession for own use of illegal drugs of any class, the relationship between criminal suppliers and users will be weakened
Drink is responsible for much of the violence on our streets, particularly late at night and consequently for much of the public's fear of crime. Drink also fuels domestic violence, particularly against women. We will tackle excessive drinking by cracking down on licensees who serve people when clearly drunk or underage. We will require big late night venues to contribute to the cost of extra late night policing. We need an educational campaign to reduce the level of binge drinking, particularly among young people.
(3) An Improved Approach to Anti-Social Behaviour
Anti-social behaviour, particularly rowdy behaviour on the streets, has a disproportionate effect on people's fear of crime. The key to combating anti-social behaviour is through effective strategies to address the causes of such behaviour, rather than focusing solely on exclusion and punishment. An effective approach to tackle anti-social behaviour needs a wide range of interventions such as Acceptable Behaviour Contracts and Parental Control Agreements, which are designed to require individuals to take responsibility for their actions. However, care must be taken to ensure that measures taken to reduce anti-social behaviour do not make young people generally feel they are victims of unjust discrimination. We also need to provide more support for young people by providing them with better community leisure facilities.
Where an Anti-Social behaviour Order (ASBO) is necessary, it is important to ensure that it is accompanied by measures to address the underlying causes of a person's behaviour, such as advice on debt management, drug rehabilitation, and help for nuisance neighbours to tackle their anti-social behaviour. This can be undertaken in conjunction with relevant agencies such as youth offending teams, social services, police and the NHS.
Acceptable Behaviour Contracts (ABCs), developed by Liberal Democrats in Islington, have been shown to be an effective alternative to ASBOs in reducing anti-social behaviour. Young people aged 10-18 sign a ‘contract' with the local authority and other agencies such as the police and housing association, specifying behaviour they will not engage in. This has proved extremely successful as a means of educating parents and children to take responsibility of the unacceptable behaviour.
Parental Control Agreements are similar to ABCs but apply to children under the age of 10. Parents or guardians who sign up to a PCA are expected to take full responsibility for their child's behaviour.
Graffiti should be deterred through a combination of street patrols and quick action by local authorities to remove graffiti as it appears. Graffiti removal should involve the perpetrators as much as possible, so that people are seen to be actively mending the damage they have done.
Neighbourhood wardens and community support officers should work as a team with the police during the evenings, at night and at weekends to combat noisy neighbours.
Liberal Democrats would transform community sentences to require non-violent as offenders such as fine defaulters, shoplifters and petty vandals to pay back their debt to victims and communities and face up to the consequences of their actions by carrying out work nominated by local people.
We also propose Community Justice Panels to give local people a say in dealing with low-level crime and anti-social behaviour. Offenders arrested for minor crimes would be given a choice between going to court and risking a criminal conviction or going before a panel of local people. There they would be expected to explain and apologise for their actions, and agree to a programme of work or reparation to make amends for the damage done. This process would rebuild links with the law-abiding community, and save valuable court time.
Eviction should still be available as a last resort for local authority tenants who breach Acceptable Behaviour Contracts or injunctions. We welcome the Government's adoption (October 2004) of Liberal Democrat plans for residential ‘treatment' programmes for anti-social tenants who are at risk of losing their homes.
(4) The Penal System
An effective penal system should be based on the key objectives of rehabilitation and reintegration of offenders into the community, imposing custodial sentences only as a last resort. Our prisons are seriously overcrowded- the prison population recently reached 75,000 for the first time - and they are ineffective at reforming offenders. Prisoner re-offending rates are unacceptably high. Over half of prisoners are re-convicted within two years of release.
Liberal Democrats would make more non-violent offenders do community work as an alternative to jail. At present, community work is not sufficiently demanding on offenders and the work is not always relevant to the needs of the local community. Community sentences should be designed to give offenders the skills for legitimate work and to require offenders to do work which makes a real difference to the quality of life for local people. Offenders can be closely monitored with tagging technology.
Where prison sentences are essential, prison must be made more effective at achieving rehabilitation. It is a sad fact that 4 out of 5 prisoners are functionally illiterate. Basic literacy, numeracy and communication skills courses should be made available to all prisoners who, after an assessment, are deemed likely to benefit from them. These should be compulsory, with immediate priority being given to young offenders. Efforts made towards achieving literacy and numeracy and the learning of other skills should be taken into account on consideration of parole.
(5) Safe Convictions and the Criminal Justice System
Relaxation of the rules preventing the routine disclosure of previous convictions in criminal trials, admission of hearsay evidence and the limiting of trial by jury undermines the cornerstone principles of the criminal justice system which are designed to prevent unsafe convictions.
We want to see modern and efficient criminal courts which are in touch with the community they serve and responsive to the needs of all their users, but this aim has not been advanced by a series of changes which have increased the risk of unsafe convictions. It is as if the Government has attempted to mask its failure to implement effective policies to catch the guilty by changing the rules so as to increase the risk of convicting the innocent. The Liberal Democrats are pledged to the repeal of recent legislation to limit trial by jury, to allow hearsay evidence in criminal trials and to permit the routine disclosure of previous convictions.
The right to trial by jury is one of the British citizen's most fundamental liberties. The right to be tried by one's peers is not merely of sentimental importance. Its significance is that it is also the right not to be tried by the State. In our system it is an organ of the State which investigates offences, another which prosecutes alleged offenders and another which sentences those convicted. The separation of these functions between different organs of the State does much to protect the citizen from oppression, but the fundamental guarantee of the citizen's liberty derives from the principle that it is neither the right nor the responsibility of the State to determine guilt or innocence. On that crucial issue, upon which the liberty of the subject depends, he or she is entitled to have the verdict of twelve independent individuals exercising their collective judgment in secret, without fear or favour.
It is an important feature of our approach that we believe in “Citizens' Justice”, that in the crucial area of criminal justice it is the citizen who makes the most important decisions. Jury trial puts the citizen at the heart of the decision-making process.
Hearsay evidence is, of its very nature, less reliable than the oral testimony of witnesses who saw or heard the events about which they give evidence. Furthermore, it is cross-examination that reveals whether or not evidence can be safely relied on in reaching a conclusion – and hearsay evidence cannot be successfully tested in cross-examination. It is unsafe to allow hearsay evidence in criminal cases, where the liberty of the citizen is at stake and where the reliability of witnesses is so often at the heart of the case..
The routine admission of previous convictions as evidence that an accused is guilty of the offence for which he or she is currently on trial is dangerous and misconceived. Previous convictions do not prove guilt but they can prejudice juries against the accused. Their admission also creates a risk that known past offenders may be targeted by police anxious to bring a suspect to trial. The change in the law to allow previous convictions in evidence must be reversed.
(6) Prosecution Appeals and Double Jeopardy
We strongly oppose the prosecution's having a right of appeal against a so-called perverse verdict. The right of juries to acquit if they choose, even where the law and the evidence would suggest a conviction, is long established. Its theoretical justification is that the conviction of a defendant is in the jury's hands. However, there is a strong practical justification as well. It is well established that it is the duty of the prosecuting authority to refrain from bringing a prosecution, even where the evidence is sufficient to secure a conviction, in any case where a prosecution would not serve the public interest. Similarly, it is open to a jury, having heard the evidence, to decide that the public interest would be best served by an acquittal, even though a conviction might otherwise be appropriate. In those circumstances the jury is rightly entitled to acquit, because the jury, after all, represents the public interest which falls to be considered. In such cases the jury is generally better placed to bring an independent judgment to bear on what the public interest requires than the Attorney General, who is, by definition, a member of the Government of the day.
We would limit the exception to the double jeopardy rule to those cases of exceptional gravity where fresh forensic evidence, which could not have been available at the time of the trial, makes the previous acquittal virtually unsustainable.
(7) A Codified Criminal Law
We are in no doubt that a Criminal Code is long overdue. In criminal law more than in any other area of law it is important that the law be logical, consistent and accessible to members of the public in a readily understandable form. The present mixture of common law and statute, developed over many centuries, does not satisfactorily meet any of the requirements of logic, consistency, accessibility or comprehensibility.
The law on sentencing is also needlessly complex at present and changes too frequently, making it difficult for all involved in the criminal justice system to understand and use effectively the range of sentences available to the courts to rehabilitate offenders.
(8) The Magistracy
Lay magistrates have been an important part of the criminal justice system in
Together, magistrates dispose of more 95% of criminal cases. Their decisions are very largely accepted - only about 1% are appealed and of those appeals only a small proportion are successful.
Liberal Democrats believe that the lay magistracy needs to be supported, though we would seek to make it more representative of society at large. Although to some degree lay magistrates are likely to continue to be predominantly middle-aged and middle class, we believe that there is substantial scope for working towards a more broadly based and representative magistracy than we have at present. We recommend:-
(1) Recruitment of more magistrates with a view to ensuring that the magistracy as a whole is younger, and more mixed, racially and socially;
(2) Rearranging court sittings to allow mothers of children, those in full-time employment, professionals and others in the middle of their careers to sit as lay justices at convenient times;
(3)
Appointment for a limited term of years so that those willing to serve for a reasonable period only would not be deterred by a long-term commitment.
(4)
Paying Magistrates an acceptable daily rate, much as local councillors are now paid.
(5)
Encouraging employers to respect magistrates' commitment to their duties.
(9) Local Courts
We oppose the continuing closures of magistrates' courts. The success of the magistrates' courts depends very largely on their links with the communities they serve. The closure of local magistrates' courts weakens those links, makes for less local reporting of local cases and makes it more difficult for victims and their families, witnesses, defendants and others to attend court. These disadvantages of closures in our view outweigh the advantages of economy of scale and better facilities that are advanced in support of the closure programme.
3. A Right to Justice - Civil Legal Aid
Access to the legal system is a necessary aspect of the rule of law and an important feature of a liberal and democratic society. People with limited resources should not be deterred from seeking legal advice, or representation because they are out-priced from the market for legal services. Policy on the public funding of legal services must start from a requirement for universality in the provision of legal aid. The demands on legal services are likely to continue to grow as we live in a world of increasing legal complexity. However, legal aid provision has reduced and legal advice centres supported by pro-bono (voluntary lawyer) services cannot and should not be expected to cope with increasing demand. Citizens Advice Bureaux do what they can to plug the gap in the availability of advice services, but they are desperately short of resources and the withdrawal of funding by many local authorities has made their position worse.
There are increasing concerns, especially in the press, about the growth of a ‘compensation culture' and it is therefore suggested by some that access to the courts and public funding should be restricted. Liberal Democrats do not agree. Whilst it is always desirable that disputes should be settled appropriately and without undue acrimony or expense, it is an essential part of a liberal and democratic society that citizens should have recourse to legally enforceable rights and remedies - whether against the state, service providers or private individuals. Access to the legal system is a necessary aspect of the rule of law.
New Labour established the Community Legal Service (CLS) to replace the legal aid scheme, a public subsidy system for legal services, introduced by the Attlee Government. The Community Legal Service introduced by the Access to Justice Act 1999 established a bureaucratic system of contracting for solicitors and not-for-profit advice organisations, which rations the services that can be delivered. At the same time the Government also reduced the scope of legal aid. Since the introduction of the CLS the number of solicitors' offices undertaking publicly funded work has reduced from over 10,000 to around 4,500. This has led to the emergence of large “advice deserts” where there is no lawyer prepared to undertake publicly funded work in some or all fields of law of significance to individuals and families.
There are inadequate resources overall for civil legal aid. Although spending on legal aid has risen from £1.5 billion in 1997 to £2 billion this year, this does not reflect responsiveness to demand and is largely accounted for by the growth of criminal legal aid. Within the civil budget, the expenditure on necessary and non-discretionary legal aid for asylum seekers has doubled in two years between 2000-1 and 2002-3. That has had the effect of squeezing the remainder of the civil legal aid budget. Currently, legal aid takes up a tiny proportion of overall government spending, the equivalent of just 5% of the expenditure of the NHS. It is incumbent upon Liberal Democrats to meet the challenge of properly funding legal aid, which we regard as a vital public service.
Liberal Democrats put justice first. We believe that there should be no discretionary rationing of legal assistance, that remuneration for those undertaking publicly funded work should be set at a level that ensures quality of service and that there should be an easy-to-use and widely accessible publicly funded legal advice scheme. Liberal Democrats would regard the resourcing and organisation of publicly funded legal services as a key responsibility of the new Department.
The backbone of any publicly funded legal service should continue to be solicitors' firms playing to their local market strengths and legal expertise, but solicitors' work should be supported by a diverse network of advice agencies and community organisations. Liberal Democrats would move from the current system of narrowly focused, case-rationed and heavily regulated contracts to a system of service level agreements. In order to retain and build skills in legal aid advice work the issue of remuneration needs to be addressed. All contract values have been frozen at 2001-2002 levels, with no allowance for the RPI, cost of living increases, rises in national insurance contributions or upgrading of IT and other office systems. Remuneration rates should be sufficiently attractive both to recruit and to retain competent legal professionals and should be set by an independent board.
Challenging questions remain about the scope of legal aid funding. Under current eligibility rules, legal aid is only available for the very poorest and is not available for tribunal cases or mediation. Alternative mechanisms for funding cases such as conditional fee agreements have not been altogether successful, but we would not want to put such funding arrangements in jeopardy when access to justice is genuinely widened.
The key is always access to information and advice, and, where necessary, the financial and social support to help people to take effective action to enforce their rights and fulfil their obligations of citizenship.
Our aims can be summarised as follows:
·
To ensure that civil legal aid is adequately funded so as to maintain access to justice for those who need but cannot otherwise afford it in civil cases of importance to them;
·
To ring-fence the civil legal aid budget, so that increases in priority spending on criminal and asylum cases do not reduce the remaining civil budget;
·
To substitute for the current regime of rationing the number of clients a solicitor or advice agency may advise a system of carefully adjusted criteria governing the scope of and eligibility for legal aid, to be applied fairly and universally;
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To substitute for the present heavily regulated contracts a flexible system of service level agreements, tailored to the skills and capacity of service providers;
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To involve lawyers with recent practical experience of publicly funded work in allocating and monitoring agreements in a proportionate and cost-effective way;
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To establish an independent review board to set legal aid rates at a level appropriate to recruit and retain competent legal professionals;
·
To facilitate the establishment of a network of call centres and community justice centres country-wide to offer legal advice and information as cost-effectively as possible and to encourage the development of outreach services in remoter areas;
·
To extend legal aid to tribunal cases, including benefit appeals, and for alternative dispute resolution;
·
To introduce a scheme of regulation for organisations providing services under conditional fee agreements.
4. A New Supreme Court for the
We support the establishment of a new Supreme Court for the
.
A Supreme Court membership of 12 provides relatively little reserve capacity, given the need to provide members frequently for two panels, while allowing for absences due to other commitments or illness. We would like to see an increase in membership of the Court from 12 to 15, but no reserve panel of retired judges.
We also believe that members of the Supreme Court should not be asked to do outside work, such as chairing inquiries, which is likely to take them away from the Court for long periods of time.
In principle, we think that newly appointed judges of the Supreme Court should not become members of the House of Lords and we do not believe that all former judges of the Supreme Court should have a right or expectation of appointment to the House of Lords on retirement. .
However, we believe that so long as an appointment system exists for the House of Lords, there is a case for appointing the Lord Chief Justice, and the heads of the judiciary in
We believe that the Supreme Court should normally sit in panels of 5. In cases of exceptional importance however (such as those which are now heard by a panel of 7) the Court should sit as a single body containing all available members of the Court. This would avoid the risk that the outcome might be seen to be affected by the selection of the panel. When the Court sits as a panel, selection of the panel should be by the President of the Court, the Deputy President and another senior member.
5. A New Method of Appointing Judges
We welcome the provisions of the Constitutional Reform Act, whereby the process of appointment and promotion of judges, both for the Supreme Court and the courts of
We agree that appointment on merit is essential. However, increased diversity is also important and can be achieved without diluting merit. The appointments system has in the past been heavily skewed in favour of successful advocates, but good advocates do not necessarily make good judges and some lawyers who are not outstanding advocates or who practise in fields other than advocacy, may make excellent judges. We would like to see more academic and other lawyers with suitable experience appointed to the Bench. We would also encourage more fluid promotion within the judiciary.
In addition, the career of a full-time advocate requires constant availability and is very family-unfriendly, making it particularly difficult for women with children to reach the top. Women and solicitors have been at a serious and unjustified disadvantage under the old system. We believe that a JAC including lay people will be aware of these problems and will be able to increase diversity. In this context, we would favourably consider establishing an alternative career path, allowing lawyers at a relatively young age to take a full or part-time judicial appointment at a lower level with a realistic prospect of promotion if they do well. At present, part-time appointments as judges are normally for only a few weeks a year and are combined with practice. It should be possible for lawyers with family responsibilities to take appointments on a regular part-time basis without remaining in practice.
6. A Ministry of Justice
Our views across the whole field of the justice system and the promotion of the rule of law lead us inexorably to the conclusion that a single Department of Justice, with a Secretary of State at cabinet level, is required. We cannot understand why the Government has consistently shirked that conclusion. We would propose that such a Department be established, combining the relevant functions of the Home Office with the functions of the Lord Chancellor's Department.
The Home Office should remain responsible for police and prisons. The present division of responsibility for the courts and the law is a historic anomaly. There is in fact no clear distinction between civil and criminal law – many acts may give rise both to a criminal prosecution and civil action for damages. The abolition of the office of Lord Chancellor would have provided a unique opportunity to reconsider the division of responsibilities between the Home Office and what is now the DCA and to reconstitute it on a more logical basis.
April 2005
All enquiries about this briefing to Jo Jackson, Secretary LDLA, in the first instance. Jo will refer enquiries to specialists as necessary.
E-mail: joldlaadsec@aol.com
Published by Liberal Democrat Lawyers Association
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