We are the custodians of the law, not Grayling

This article was first published in Solicitors Journal on 3 February 2015 and is reproduced by kind permission (www.solicitorsjournal.com)

The Lord Chancellor’s ‘being a non-lawyer is a help rather than a hindrance’ comment underlined the relationship between lay policy makers and ‘on the ground’ solicitors who have to deal with the ramifications of ill-thought-out legislation. Grayling has sent solicitors across England into varying degrees of apoplexy with his ham-fisted attempts to ‘simplify’ the judicial review process.

If Grayling et al are the villains of the legal world, who are the champions? Many solicitors have vocalised their misgivings about the practical implications of the changes to judicial review, and rightly so.

Although it is right that solicitors should comment, dissent, lobby and try to educate policy makers in their decisions, it struck me that it is perhaps equally, if not more important, to consider how we as practitioners respond to poor government decisions once they are made.

Since access to legal aid was reduced in 2012, there has been a marked increase in the number of applications for pro bono help. The government failed to adequately consider the potential impact that the cuts would have on people’s lives. The National Audit Office has reported an 89 per cent rise in family law cases involving children where neither parent has legal representation. Some solicitors, in addition to criticising the changes, have been actively tackling the issues that arise in practice.

There are a number of individuals in the industry who inspire me in this regard. Rebecca Stevens, a family solicitor-advocate at Withy King in London, springs to mind. Rebecca was recently praised by the head of family justice, Sir James Munby, for her role in a case where she has been acting on a pro bono basis on behalf of a father with learning difficulties who is trying to stop the local authority from having his son adopted. Rebecca represented the parents free of charge.

Although it is easy (and right) to focus on the most tragic cases in which legal aid cuts have made their mark, it is important to recognise a general duty of solicitors: that our commitment to upholding justice should not be entirely contingent on whether people are able to pay us or not. New statistics from the Law Society indicate that only 31 per cent of solicitors do one day of pro bono work a year, and 58 per cent do less than one hour. Hopefully it is clear that this is not simply about solicitors being money grabbing crooks. Rather, no business can survive if it cannot charge for its services, as recognised by President Munby: “It is unfair that legal representation...is only available if the lawyers agree to work for nothing.

With legal aid, any attempt to teach the government a lesson or starve them out will only hurt those whose access to justice is already impeded. As custodians of the law, is it not our duty to facilitate access to justice to the best of our abilities?

I have speculated previously about why solicitors are viewed negatively as a profession, and without re-examining the various possible reasons for this, perhaps it could be countered more effectively by our actions and not our words.