Brexit currently seems to fill every breathing moment. There remains a lot of confusion and misunderstanding. But there is one matter that has raised its head again. This is the mistaken belief, alarmingly repeated by the Leader of the Opposition last week, that Brexit has something to do with the European Court of Human Rights and the Human Rights Act 1998.
I do not normally reproduce blogs from the back catalogue.
But I do think that we need a further brief history lesson. I first posted this in 2016 shortly after the referendum.
After the end of WW2 in 1945 there was a determination that this should never happen again. One initiative, driven by Winston Churchill and Eleanor Roosevelt, was the Universal Declaration of Human Rights. This identified certain rights that were common to all people. It is worth listing them as they are now taken for granted by all of us –
Right to Equality
Freedom from Discrimination
Right to Life, Liberty, Personal Security
Freedom from Slavery
Freedom from Torture and Degrading Treatment
Right to Recognition as a Person before the Law
Right to Equality before the Law
Right to Remedy by Competent Tribunal
Freedom from Arbitrary Arrest and Exile
Right to Fair Public Hearing
Right to be Considered Innocent until Proven Guilty
Freedom from Interference with Privacy, Family, Home and Correspondence
Right to Free Movement in and out of the Country
Right to Asylum in other Countries from Persecution
Right to a Nationality and the Freedom to Change It
Right to Marriage and Family
Right to Own Property
Freedom of Belief and Religion
Freedom of Opinion and Information
Right of Peaceful Assembly and Association
Right to Participate in Government and in Free Elections
Right to Social Security
Right to Desirable Work and to Join Trade Unions
Right to Rest and Leisure
Right to Adequate Living Standard
Right to Education
Right to Participate in the Cultural Life of Community
Right to a Social Order that Articulates this Document
Community Duties Essential to Free and Full Development
Freedom from State or Personal Interference in the above Rights
Eleanor Roosevelt described the Declaration as her greatest achievement.
There was also a determination that co-operation in Europe was an essential pathway to peace. In 1946 Churchill spoke at the University of Zurich and spoke of the need to create a United States of Europe! (Imagine the noise in certain quarters if he said that today!).
In fact the body that came into existence was the Council of Europe which was launched in 1949. One of its first achievements was the European Convention on Human Rights in 1950. The Convention followed the basic rights contained in the Declaration. The UK was probably the main driving force behind the Council and the Convention. The European Court of Human Rights (ECHR) was created in 1959 to adjudicate on matters arising from the Convention. Until 2000 any UK citizen who complained that their rights had been breached had to go to the ECHR in Strasbourg. In 1998 the UK Government passed the Human Rights Act; a short Act which incorporated the Convention into UK Law. This came into force in 2000 and meant that UK courts had jurisdiction to hear cases. The ECHR has retained its place as the final court in Human Rights cases, but only after all local remedies have been exhausted. There is nothing in the Human Rights Act, or the Convention that says prisoners can have a Big Mac in their cell or that suspected terrorists cannot be deported!
But the most important point is this – the ECHR has nothing at all to do with the EU, the referendum or Boris Johnson.
Some Conservative Ministers want to abolish the Act and replace it with a UK Bill of Rights. Interestingly Michael Gove, whose day job was as Justice Minister opposes this. And David Cameron, wanted it abolished –
Any Bill of Rights would certainly have to protect the rights set out in the Convention so is unlikely to change much.
My fear is that some might have voted to leave the EU in the belief that it would somehow remove these rights which have had a bad press, often due to misunderstandings and hostile reporting.
In fact the Leave vote has no effect at all on our Human Rights one way or the other.
All EU member states have signed up to the Convention, so exit could pave the way for an extreme government to try and force us out of the Convention at some point in the future. But it is unthinkable that the UK would try to abolish the very rights that were created by our leaders. In removing these basic rights we would be aligning ourselves with some very questionable regimes!
This is the time of year when lawyers are seen walking the streets of towns and cities across the country. Today is Manchester’s turn. On Wednesday this week it was the turn of Liverpool. In fact, it is not just lawyers. Liverpool saw local politicians, advice workers and concerned citizens walking with solicitors, barristers and judges. The lead walkers included the Lord Mayor, the High Sheriff, President of Liverpool Law Society together with the Chairs of the Women’s Layers Group and the Junior Lawyers Group.
As we walked past one family near the Pier Head I heard someone say – ‘I don’t know what that’s all about.’ So what is it all about? It is about Access to Justice for all.
The primary purpose of the walk is to raise funds for the North West Legal Support Trust. The Trust provides grants to agencies which offer free legal advice and help to those in greatest need. The need for these agencies has grown dramatically since drastic cuts to legal aid funding have seen thousands deprived of the right to legal advice unless they have the money to pay for it. You would expect this need to be met by society. But it isn’t, by a long distance. So the burden falls onto the third sector. The money raised via the walks helps many places to keep their doors open. My first proper job as a lawyer was at the Vauxhall Law Centre in Liverpool. That is one organisation which has stayed open following support from the trust.
There is more to the walks than just fundraising. They present a great opportunity for lawyers and others concerned with justice, to make a statement that it is important. As one leading judge said at the end of the walk –
'You can have all the human rights in the world but they mean nothing without the means to enforce them'
The walks are also an occasion when hard working lawyers can let their hair down and bring some humour to the streets. So we had walkers dressed as the Titanic and Yellow Submarine posing with George and Ringo (above), scouse celebrities and hair curlers! This year’s Liverpool walk was the best so far in so many different ways.
But the main reason we walk in cities across the land is to show that access to justice is an important right. There are not many votes in justice. She is not missed until she is needed. There are those who refuse to be silent until this is addressed. And their numbers are growing buy the day.
Ps you can still donate to the Liverpool Walk here –
I recently attended a fringe meeting at the Labour Party Conference in Liverpool focussing on Access to Justice. One disturbing comment from Shadow Lord Chancellor, Richard Burgon prompted this post. He predicted a critical shortage of Legal Aid Lawyers in the future. Where will the next generation of campaigning lawyers come from?
My first real job as a solicitor was at the Vauxhall Law Centre in Liverpool. Back in the early 1980s this Law Centre was in the heart of some of the worst housing in Europe. I applied because it was an interesting and challenging job. I would not have called myself a campaigning lawyer when I started, although that soon changed! The first time you visit a flat with sh*t all over the floor from a backed up toilet changes everything. During my years at the Law Centre I was never short of willing volunteers – law students who saw social welfare law as a career option and wanted real experience. And there was no shortage of opportunities. There were two law centres in Liverpool and one in Warrington. There were also firms which specialised in legal aid work – remember those days?
What a difference a few decades makes! Only a few weeks ago I wrote about the absence of any housing lawyers offering legal aid in Cornwall –
Our Universities do a fantastic job with their Law Clinics which enable students to do proper legal work. But they will tell you that this is no substitute for legal aid. Is anyone listening?
It is encouraging to hear the Shadow Justice Minister pledge support for a new generation of young lawyers; promising funding for training opportunities. It was also encouraging to hear his commitment to supporting a new wave of Law Centres.
But this should not really be a party political issue. Access to Justice is, or should be, a basic human right. What is the point of having rights if you need money to enforce them? The real answer lies in the return to a properly funded system of legal aid, across the country which would breathe life into welfare law across the country and provide a whole new landscape for committed young lawyers.
5. Even excluding holiday homes, one in ten houses in the county are empty
6. If you need legal advice on housing matters, you won’t get it unless you have money.
At the end of August, the housing Charity Shelter, closed its office in Truro. It had decided not to apply to renew its legal aid contract for Housing Advice. The reason for the closure was that the charity decided that it should focus work on its 11 urban hubs where there is greatest overall need –
One can understand why a charity would have to make that type of decision.
This was the last surviving provider of legally aided housing advice in the entire county. So now there are none. It is a waste land. If you live in St Ives, you will need to travel almost 80 miles to Plymouth if you need professional advice and help on a housing matter. For us up north, that’s a bit like having to go from Liverpool to Leeds! Just to get some basic legal help.
This is nothing less than a scandal.
Don’t blame Shelter. They are a charity doing their best with limited resources. And why should they shoulder the burden of providing advice to an entire county?
The fault lies well and truly with our government who fail, time and time again, to see access to justice as a priority. It isn’t just Cornwall. Back in July, the Joint Committee on Human Rights warned that large parts of the country had become legal aid deserts.
This has been caused by punitive cuts in the amounts paid to legal aid lawyers, alongside the 2013 removal of huge areas of work from the scope of legal aid. The entitlement to state funded legal aid for those in need began in 1945. Following years of ‘progress’ that entitlement has been reduced to this.
We have a legal system that it is the envy of many.
If we exclude those in need from access to that system, then it becomes a meaningless mockery.
The government is currently reviewing the impact of the 2013 changes. It must urgently acknowledge how those changes have affected the lives of ordinary people and commit to a properly funded system of legal aid.
This is unlikely, there are not many votes in justice, unless we all make as much noise as possible.
Barrister, Russell James who first highlighted this matter has recently tweeted -
Which is good news ... sort of. As he says, it helps access to justice if you know where to find it! And is it really a cause for celebration that an entire county now has one provider of housing advice???
This post develops a rant that I posted on Facebook earlier today. During the morning I had 4 calls from a claims farmer. I have a Truecaller App on my phone which told me that it was an Accident Management Company. So, I didn’t pick up. For anyone who is interested the number was -
When the 5th call came I gave in to temptation and picked up.
A very pleasant caller asked me how I was today, which was very nice. He then launched into his script about the accident I had etc etc. I was trying to think of a witty retort, but I went for the angry approach. I told him that I not had any accident and that I objected to being cold called. He sounded genuinely hurt. He said that he wasn’t cold calling. He was just trying to help. I asked where he got my number from and he replied that he had found my details on the 'national accidents database'. I told him that I had been a lawyer for over 30 years and there was no such thing. He then became aggressive and told me that I was a liar!! I asked if he was in the habit of cold calling people and then insulting them. The call ended at this point.
This is not the first time that I have come across a magic database like this. A few years ago, when hearing loss claims were all the rage, I was told that my name was on a register. This was a register of people who had worked in noisy factories! Not much of register seeing as I’ve worked in an office all my life.
It seems that these callers are required to include an element of fantasy into their calls. Honesty is clearly insufficient. Is it me or is getting worse? I seem to get 2 – 3 calls a week. Does my phone number look particularly gullible? All of this is happening at a time when ministers and the media continue to blame victims of accidents for the mythical compensation culture. Surely the time has come for victims, insurers, genuine CMCs and politicians to focus all of their effort where they belong – removing these leeches from our justice system.
When I posted a shorter rant of Facebook I received lots of comments about how best to deal with these callers. The best response was from a friend who said that she once gave the phone to her 5-year-old who proceeded to interrogate the caller about toast and Star Wars…
NHS Resolution have acknowledged a reduction in the number of Clinical Negligence Claims. Its annual report confirmed that the number of new cases has reached a record low. The 2013 LASPO ‘reforms’ are said to be the reason for this drop.
It would be interesting to see how many genuine victims have been deterred from bringing a claim because of those reforms which largely removed entitlement to legal aid for most people. It is also notable that no credit is given for the work done by those representing victims who sift many cases from the system before the NHS ever sees them –
Despite the reduction in the number of claims, the actual cost to the NHS has risen. It is very disturbing that NHS Resolution attribute this to the recent changes in the discount rate applied to large damages awards. This is a complex matter. In simple terms to discount rate is used to ensure that a victim is not over-compensated.
The Medical Defence Union, which represents many GPs have gone further. They describe the reduction in the rate as part of a 'hostile legal climate', as if lawyers are a fault for fighting to secure justice for the most vulnerable of victims. They do not suggest that claims are exaggerated. They simply object to paying the right level of damages -
In many cases victims receive awards which look like lottery wins. Victims of the most serious incidents suffer life changing injuries. Many will need care and support from others for life. A victim might receive a payment today which not be spent for many years. The discount rate assumes what interest the money will earn over those years. It is critical to victims that this is properly calculated. Otherwise there is a real risk that the fund will run out early.
Until February 2017 the discount rate was 2.5%. This was ludicrously high at a time when real interest rates were well below 1%. Consequently, hundreds of victims were at risk of grave injustice. This was finally corrected when the Ministry of Justice reduced the rate to minus 0.75%. So the discount was reduced and damages were raised. All this did was correct a long running injustice –
The level of damages has increased. But this was from a level that was scandalously too low. The NHS benefited from this for many years. Now they complain that it is costing them more – to pay fair levels of compensation to victims.
The discount rate is not a ‘problem’ to be resolved. It is a mechanism to ensure that damages are fair and reasonable.
This is an unusual blog – for me. I am not ranting about injustice but sharing a growing concern and canvassing opinion. Over the last few months I have become increasingly disturbed by the numbers of lawyers – particularly young lawyers, who get themselves into terrible difficulties when things go wrong.
I posted a blog about this a few weeks ago, which had one of my biggest ever responses –
How many times do we have to say it? The short-term discomfort of admitting a mistake, vastly outweighs the horrors of disciplinary action which inevitably follow efforts to cover things up. Do our young lawyers really have no one that they can talk to? The answer to that is – of course they do. Most caring firms will have an open-door policy, which is why these incidents are rare. But they can still be devastating for the lawyer and the firm. And there are clearly a minority of cases where the lawyer does not feel able to speak to a manager.
With all of this in mind I have been thinking about offering a facility, via my consultancy, to enable lawyers – of whatever level – to have a confidential discussion if they find themselves floundering for whatever reason. This will be at no cost to the lawyer. So three questions come from this –
1. Would something like this serve a purpose? I am aware of the fantastic work done by Law Care - https://www.lawcare.org.uk/ . They certainly offer the best service for those lawyers who need care and support. The Law Society also have an excellent pastoral care helpline - 020 7320 5795. What I have in mind is a much more low-key affair – a confidential sounding board for lawyers who are facing an immediate problem and do not feel that they have anyone to turn to. This might involve anything from a simple word of wisdom to a signposting to someone like Law Care if needed,
2. Would there be scope for a wider network of senior and experience lawyers to form a wider group?
I am old enough to remember the days when you sent a letter and then waited several days for a reply – unless you had an ultra-high tech opponent who owned a fax machine. Then we began to send and receive emails via our PCs in the late 1990s. This made things a bit more immediate, but you still had to go and switch on your computer.
Then the smart-phone changed the world. Suddenly, our emails began to follow us everywhere we went. My wife once caught me sitting up in bed reading them on holiday in Mexico. I blamed jet lag and the time difference. But in truth they were there, I was awake, and the rest just happened! On a more serious note I once received an aggressive email from a complaining client at 1155 on Christmas Eve – why did I read it? Because my phone was telling me it was there, and I couldn’t resist.
These incidents caused me to introduce some strict rules which I have found very useful over the years –
1. I initially started to disable my work emails when I went on holiday. Now, I understand why it is useful to reduce the number of emails crying out for attention when I get back to work. But on balance, getting a life won the day. I made sure that someone had my mobile phone number, so I could be contacted if I became as indispensable as I thought I was. This worked up to a point, but I still found myself with my nose in my phone while watching The Bridge on a Saturday night.
2. In time, the penny dropped – the world did not cease to orbit the sun if I did not check them all the time. So I really did take the plunge. I firstly disabled notifications altogether. Then I regressed a full decade and removed my account from my phone. Guess what? I’m still alive, the sun is shining, and Trump would have been elected whether I had my emails on or not.
3. I have never gone back. I check my emails once or twice when I am at home and never on holiday. But I am now in control.
4. Much of that energy now goes into twitter!!
There is a real benefit in cutting yourself free from your emails. It creates time for you to relax, to read a book, watch the World Cup or even Love Island if you really must. It also creates space for a more considered reply. If you receive a scary email while you are eating out or travelling, there is a real temptation to fire back a reply immediately. How often has someone pressed the send button and then regretted it. Recalling an email does not erase it! If you create time to read emails you will also create time to reply. You might even ask yourself whether a reply can wait for a day or so.
This might not work for everyone. But if your time is ruled by your mail box you need to change things. Now.
A recent case has reminded us again of the dangers of exaggerated compensation claims. This time it is a clinical negligence case, but the same issues could arise in any claim involving the alleged consequences of an injury. The facts are summarised in a report in yesterdays’ Litigation Futures –
Mr Atwal alleged that he was significantly disabled and claimed damages just over £800k. It was not disputed that his treatment had fallen below an acceptable standard and that he had suffered some injury as a result. The Trust had offered £30k. He could have had a reasonable claim and secured a fair settlement. As it was he grossly exaggerated the effects of the negligence. He has ended up with a 3 month prison sentence, a £75k adverse costs liability and no damages.
NHS Resolution have published the video footage which led to his downfall –
Cases like this are so frustrating for those who seek justice for victims of medical negligence and accidents. Over the last few years there have been relentless attacks by the media and politicians against the so called ‘compensation culture’. The vast majority of claimants are genuine victims who are simply seeking some acknowledgment that they have been wronged. For many, the compensation is not their main concern. They want to know what happened and who will be held to account. Compensation plays a huge role in providing support for those who often suffer life changing injuries –
Then a case like this comes along and sends us back to the start like a sinister game of snakes and ladders. It is difficult to disagree with the CEO of NHS Resolution that there must be a clear message that ‘you cannot submit fraudulent claims’ with impunity. They damage everybody.
There is also a real message here for lawyers who represent victims. Any claim for damages must be vigorously scrutinised.
Mr Atwal’s solicitors were, presumably, acting on a Conditional Fee Agreement. They will have suffered massive commercial damage which would bring many firms to their knees. Some might be tempted to submit a six-figure claim on the basis that liability is admitted so ‘we are bound to get more than is offered’.
A case like this highlights that the consequences can be catastrophic. It also does untold damage to the real vicitms.
Most observers agree that the Criminal Justice system in England and Wales is on the verge of collapse. There has been no clearer analysis of this than the Secret Barrister’s recent bestseller. A former MOJ Minister has now weighed in with his own contribution to the debate which is so wide of the mark we should all be pleased that he hasn’t taken up a career in knife throwing!
Jonathan Djanogly’s answer is straightforward. We need more efficiency from Criminal defence lawyers. This will be via a network of ABSs, fewer and bigger firms, and more competition. Why didn’t we think of this before??
It is hard to know where to start. How about the shocking treatment of victims? How will bigger and fewer firms result in less trials being cancelled at the last minute or moved to an unreachable court in another area? How will it stop the collapse of trials because the CPS are so underesourced that they fail to provide their own lawyers with the necessary documents? How will it resolve the iniquitous innocence tax which means that a person can be acquitted of a serious offence but still lose everything in successfully defending themselves?
I am not a criminal lawyer. But I know a bit about ABSs and am involved in two such business. The obvious commercial question is – who in their right mind would be interested in investing in an ABS which is dependent on legally aided criminal work? Work in which the rates are so low that a young barrister, paid £80 for a day’s trial finds herself having to borrow the fare home –
According to some reports, earnings have dropped by 40% in real terms since 2007.
Which ambitious entrepreneurs are going to join the queue to set up an ABS in this climate? It is pure fantasy. It also shows a complete disregard for the thoughtful arguments that have come from across the profession in the last few months. The criminal justice system needs a complete overhaul and return of the funds that have been stripped from it. Empty management speak is meaningless.
As an MP, MR Djanogly has presumably received his free copy of the Secret Barrister’s book. He might like to read it…