President's Letter (October 2009)

It was in 1944 that the then Lord Chancellor Viscount Simon wrote to Peter Mandelson’s grandfather, Herbert Morrison, who was then Home Secretary, informing him that he was setting up a committee to consider the provision of legal aid in the Civil Courts.

There was concern about the issue of legal representation for the poor. This had been provided on a haphazard basis by charities and there was an impetus to make this provision state funded.

At about this time someone wrote “legal aid is the service which the modern state owes to its citizens as a matter of principal. It is part of the protection of the citizen’s individuality which, in our modern conception of the relation between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves…the State is responsible for the law…which is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor”. (The poor man’s lawyer, March 1940, Dr E. J Cowan). Thus, the Rushcliffe Committee sat as an all party and no party committee comprising judges, barristers, solicitors, social workers and politicians. The committee reported in May 1945 and almost all their recommendations were included in the Legal Aid and Advice Act of 1949. The Act no longer required lawyers to conduct cases for the poor without remuneration, and generally speaking, a fair remuneration for their services was established. 

The greatest change was that the system was no longer based on charity but on “people’s social and legal rights”.

Nowadays it seems that much has become forgotten; the State in its unceasing search for value and its desire to pay the minimum has created great unfairness. The consequence has been the gradual erosion of access to justice and the disenchantment of the profession. Fair remuneration has become an irrelevance and has no place on any Governments agenda. The Legal Aid Commission whilst being described as independent cannot in reality be independent as the Department for Constitutional Affairs is in control of everything.

The lawyer’s bargaining position is non-existent. The State is the largest buyer of legal services in our country and is taking advantage of its dominant position to pay around a quarter of the market rate. This echoes of the early days of the last century when the master took advantage of the servant.

As a profession, most of whom are driven by vocation and a sense of duty to care for others; we are an easy group to be taken advantage of.

To address this imbalance the Government’s mindset must be changed. Lawyers need fair remuneration to stay in business and ensure that another generation is in place to follow for the “protection of all citizens, poor and rich alike”. My view is that there should be a wholly independent body which sits between our profession and the LSC so that the issue of fair remuneration can be independently brokered. This campaign should be placed high on our agendas and voiced at every opportunity so that change can be brought about.

The Association of Personal Injury Lawyers (APIL) has recently made a stand, walking out of talks concerning fixed costs in personal injury cases. One fears that everything is a done deal and that discussion and argument will have little effect. The same is arguably true concerning the Government’s campaign to get rid of the indemnity principle when a payment out of central funds has been made in favour of successful defendants. Here the authorities want to pay legal aid rates only and not the fees that have been privately incurred.

Since my last article I have met Ruth Marks who was appointed last year as Commissioner for the Elderly In Wales. The Commission is designed to protect the elderly from discrimination, prejudice and provide input to influence future policies for older people in Wales. One has to bear in mind that our population is aging and that as it does Ruth’s role will assume increasing importance. We all wish her well.

I had the pleasure of attending a dinner in aid of Prime Cymru which is a charity established in 2001 at the instigation of the Prince of Wales. He believed that the success of the Prince’s trust could be duplicated for mature entrepreneurs and with the prince’s initiative for Mature Enterprise (PRIME Cymru), he has been proved right. The charity helps people over the age of 50 in Wales to become economically active. The charity is aimed at people who through redundancy or enforced early retirement need help to re-establish their lives.

So far about 5000 people have received free help and advice. Over 1200 of these people have gone on to set up their own businesses creating over 2000 jobs in the process. The dinner was hosted by HRH at Highgrove and was a most enjoyable evening. There is no doubt that we should all be aware of the existence of Prime Cymru and where possible try to help or at least bear in mind its existence for the benefit of clients and others who may be in need of the real help and support that Prime Cymru can provide.

Stuart Hutton, CDLS President

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