Private sector soluton to legal aid funding crisis

Outline proposal for voluntary system to replace legal aid
- The indemnity principle needs to be abolished, so that lawyers can act for clients who are unable to agree to pay their fees, and the lawyers can recover their costs to be assessed on a party – party basis from the other party if successful.
- The Access to Justice Foundation (AJF) already exists and it will be able to take advantage of the new freedom to charge fees if successful http://www.accesstojusticefoundation.org.uk/
- Lawyers who are willing to work on a ‘no win no fee basis’ would be entitled to recover fees from the other party if successful.
- Those not willing to take that risk would have their costs covered by AJF, but 20% of any costs recovered would be paid to AJF. This fund would be used to cover the costs of those who are unsuccessful. Because the costs would be assessed at private client rates, the lawyers would receive at least as much as they have done previously under legal aid.
- AJF would get contingency insurance to cover the risk of excessive losses.
- AJF would invite firms and barristers willing to work under the scheme to sponsor it and they would receive advertising in return.
- AJF would delegate case approval to its insurers, who would check the merits and financial eligibility, but with much less strict eligibility criteria than under the existing legal aid system, so that it would truly provide access to justice for all.
- those clients able to pay a contribution would be required to do so, in the form of premiums to be collected by the insurers acting for AJF. Lawyers would be expected to collect contributions from clients in appropriate cases and pay them to AJF as a condition of funding.
- AJF would be entitled to a charge over any money or property recovered or preserved in the proceedings.

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Legal Aid under threat

Kenneth Clarke complains that legal aid is costing the average taxpayer £39 per year. Under the Legal Aid, Sentencing and Punishment of Offenders Bill, now before Parliament, legal help, and representation in family and other civil proceedings will be severely curtailed, which will do severe harm to the rule of law, and cause widespread injustice. It will cause chaos in the civil courts as there will be more litigants-in- person who are unable to prepare and present their cases properly.
The Liberal Democrat Lawyers Association has published its Autumn 2011 Journal which is dedicated to the issue of legal aid. LEGAL DEMOCRAT JOURNAL Autumn 2011 PDF 23.9.11
which I hope all in Parliament will read and take note of. I suggest that the Bill is withdrawn and that the Justice Select Committee conducts a review of legal aid and comes up with some new ideas which will enable everyone in society to benefit from legal advice and assistance when they need it. The existing householders legal protection insurance is inadequate but surely the average taxpayer would be happy to pay £39 per year for an effective insurance policy. In this way access to justice would be enabled.

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Defamation Bill

I have responded to the Ministry of Justice Consultation Paper on the Defamation Bill expressing my own views.
Generally I don’t think the draft Bill goes far enough, and wider definitions are needed for qualified privilege. It needs to be made easier for those who are defamed to get redress and easer for those falsely accused of defamation to defend themselvesdefamation-consultation-questionnaire. This means not front loading the procedure too much. I don’t think the single publication rule will improve the law, as there is a very short limitation period and there is no need for libellous allegations to be repeated after the limitation period has expired. If there is to be a single publication rule, there needs to be a safeguard to prevent injustice resulting.
Costs need to be more strictly controlled.
Claimants are free to choose the most expensive lawyers, but they cannot reasonably expect defendants to pay all their costs if they do so and win.
The deadline for submissions is 10 June and the draft Bill is already being discussed by a pre-legislative scrutiny committee. All submissions will be reported to the committee. Anyone who has differing views should make his or her own submission.

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Marriage Visas: Pre-Entry English Requirements for Spouses

Marriage Visas: Pre-Entry English Requirements for Spouses.

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Human Rights – marriage and family life

O’ Donoghue v The United Kingdom [2010] ECtHR Case on Right to Marry

Written ministerial statement on English language requirement | Home Office.

marriagevisasthewayforward

Quila v Home Secretary [2010] EWCA Civ 1482

ILPA and JCWI LETTER TO DAMIAN GREEN 1.10.10

Damian Green’s Letter

I have been reading on another WordPress blog about the problems faced by anyone from abroad who is marrying a UK citizen getting the visa required to enable them to settle together in this country.

I have checked back and see that several respondents to the consultation paper warned the Minister Liam Byrne that this change would probably infringe Articles 8 and 12 of the European Convention on Human Rights.

Theresa May as Home Secretary then introduced the new immigration rules shortly after coming to office – see the link above to the Ministerial Statement.  The Labour Party and the Conservatives are jointly responsible for this breach of human rights.

The Courts have said they could not annul the Immigration Rules, but in the Quila case (link above) the Courts have already declared that the rule about the sponsorship of people under 21 in the Immigration Rules, which was based on the 2008 Consultation Paper,  should not be followed as it is an arbitrary rule, contrary to Article 8.

I thought the same would happen with the rule about English language testing.  The High Court has now decided otherwise, in the case of R (Chapti) v Home Secretary [2011] EWHC 3370 (Admin), on the narrow ground that the language testing rule does not prevent a couple being reunited and marrying abroad, so Article 12 is not engaged.  The judge said Article 8 was engaged, but that the rule was not in itself a disproportionate interference with family life. He recognised, however that “it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights”.

The question is, should not the UK respect the right of its citizens to to marry, by allowing them to do so here, rather than relying on the another state to allow the British citizen to enter it to marry?  How would we feel if we were not allowed to enter Pakistan to marry, without having learnt Urdu first?

It remains to be seen whether this decision will be reversed on appeal or by the ECtHR.

The European Court of Human Rights has already ruled on the approved certificate scheme in the O’Donoghue Case, which infringes the Convention and the Government is now bringing in a remedial order to abolish the scheme. This was partly because  Church of England marriages were exempted from marriage restrictions, which was considered discriminatory.

There is the problem of forced marriage and sham marriage, but it is wrong that those who have genuine marriages or other relationships should be adversely affected by a rigid and unreasonable law which inteferes with their personal freedom in a very serious way.

It is clear from David Cameron’s latest speech that he is unwilling to pay heed to the Liberal Democrats in Government who want to rectify this.  Even decisions of the European Court of Human Rights are ignored.

It still seems to me that the English language requirement is discriminatory, disproportionate and unnecessary. A spouse who is allowed to live with his or her partner in this country is far more likely to be able to learn English than one who is kept out. This has been presented as a way of helping immigrants to integrate when they are allowed to come here, but the delay in coming here caused by the  need to learn English first does not reduce the time required for integration at all – it only lengthens it.  This applies to families and couples of all kinds, not just married couples.

I see that the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners Association wrote to Damian Green the Immigration Minister about this (see link above).

I have been provided with a copy of Damian Green’s reply (see link above).   I think this shows how much we need to be concerned about the Tories’ attitude to human rights.

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Abolition of Chancel Repair Liability

One of the law reforms I would like to see is finally to lift the burden of chancel repairs from the shoulders of home owners.

The recommendations of the Law Commission in its 1985 report
should now be implemented.

This could include relieving the Church Commissioners of their existing liabilities to parishes for chancel repairs, and those of  Oxford and Cambridge colleges, and Winchester and Eton Schools, based on their receipt in 1936 of the compensation stock from the Government, on the extinguishment of tithe rentcharges by the Tithe Act 1936.  I understand the compensation stock was not sufficient to cover the cost of all future chancel repairs. The Church Commissioners would be able to arrange to make grants for church repairs on a more rational basis than historical accident.

The extent of the Church Commissioners’ liabilities (and by extrapolation, the size of the whole problem) can be judged from the Church 2010 AGM Pastoral Committee report which can be found on http://www.churchofengland.org.

It is was not enough that the Government  made chancel repair liability an “overriding interest” only until 12 October 2013.  The generally accepted wisdom is that it only affects existing property owners who bought before 13 October 2013, and those who buy when notices of the liability have been registered at the Land Registry.  The Land Registration Act 2002 and the Chancel Repairs Act 1932 need be amended to state that owners whose registered title has priority over the chancel repair liability, will have a defence to any claim.  But the Government has not expressed any willingness even to consider making any such change, or any change at all, to this legislation.  Chancel repair liability does not, to my mind, fall within the meaning of the undefined expression “any other interest or charge which subsists for the benefit of, or is a charge on, an interest the title to which is registered” which is used in section 2 of the Land Registration Act 2002 to define the scope of land registration.  This means registration is unnecessary and pointless.

The Land Registry should stop registering notices of chancel repair liability, and should cancel all the notices.

The Land Registry has said it has assumed chancel repair liability is an interest in land, because it was made an overriding interest in the 1925 Land Registration Act , and also for 10 years after the 2002 LR Act came in. But it no longer is an overriding or any kind of interest in the land of the lay rector. It could have been said in 1925 that under the Law of Property Act 1925 section 1(2) tithe rentcharge was mentioned as one of the “interests or charges in or over land which are capable of subsisting or of being conveyed or created at law”.  Chancel repair liability was a charge on the tithe rentcharge which the lay rector received. As the tithe rentcharges gave the lay rector a special interest in the land out of which they were payable, and the chancel repair liability was a charge on that interest, so the PCC had a charge on an interest in land.

This changed with the Tithe Act 1936 as the words “tithe rentcharge” in section 1(2) of the Law of Property Act 1925 were repealed by the 1936 Act.

A similar argument can be used in a case where the liability is based on the land having been allotted in lieu of tithe under an Enclosure Award.  Since the tithe does not exist as a recognised interest in land – it has not simply merged in the land; due to legislative changes it is no longer recognised as an interest in land – so the concomitant chancel repair liability (if it still exists at all) cannot be a charge on the tithe merged in the land.  No judge has ever weighed this argument and accepted to rejected it. The argument has not been attempted, so judges have assumed that the old common law of chancel repair liability has not been fundamentally affected by the various legislative changes over the past two centuries.  It is up to those representing lay rectors in the courts and tribunals to move the law forward into the 21st century, as Parliament is unlikely to do so.

The Government refused to do anything about it when the Law Society made it clear in its Submission submission_ChancelRepairLiability 6 years ago that Solicitors generally felt the liability was an anachronism that caused unnecessary expense in conveyancing and no longer served any practical purpose.

We now know that, in some parishes, the church authorities have been looking for properties to register the liability against.  A case in point is Broadway in Worcestershire, where the PCC has actually applied to register chancel repair liability notices against the titles of 30 people, who are alleged to own land which was allotted to the Earl of Coventry as lay rector under an enclosure award of 1771.  They are all entitled to object and will be advised by their solicitors how to do so.  The Bishop of Worcester and the PCC argue that all this is having a damaging effect on the mission of the Church, but they  seem to have been intimidated by someone into thinking they have to register unless the Charity Commission agrees otherwise. This is really no business of the Charity Commission.  The Charity Commission supported the decision of the PCC of Broadway not to pursue its applications.

Mark Hill the well known ecclesiastical lawyer has argued in Church Autonomy in the United Kingdom by Mark Hill that the Church of England should have autonomy.  However, privileges come with duties and one is surely to observe the human rights of parishioners.

Andreas Whittam Smith, the Church Commissioner, has stated publicly that the Church should be more hard-nosed in managing its investments, so abandoning the ethical investment principles which were defended by Lord Harries when he was the Bishop of Oxford. Harries v The Church Commissioners for England (1993)

There has been no recent debate in the General Synod.

The General Synod of the Church of England debated this in 1982 and accepted the report of its standing committee, calling on the Government to phase out the liability over 20 years.  This would have meant that property owners would not longer be liable for chancel repairs. Most of the liability passed to the parochial church councils in 1936, as the Government paid compensation to the Churches when it ended tithe rent-charge, under the Tithe Act 1936.

The remaining liability is an anomaly and an unnecessary complication to the conveyancing process for home buyers.

The standing committee report General Synod Standing Committee – Chancel Repair Liability – Report GS 515  is clear about the reasons why the Synod wanted Parliament to abolish the liability.

The debate on the report in the General Synod also makes interesting reading -Transcript of Proceedings of General Synod 18.2.1982.

It is the parish churches, rather than the Synod or Church Commissioners, that in theory might gain from the liability, but in practice hardly anyone in the parishes wants to know.

I have submitted a paper on this to the Ministry of Justice and the Law Commission.  You can read an abridged version of it hereCHANCEL REPAIR LIABILITY LAW COMMISSION SUBMISSION 18.03.2011

Repeal of the Chancel Repairs Act 1932 would simplify conveyancing, and make the law fairer to everybody, including the churches.

Chancel repair liability is a complicated subject, as you can see from some of the case reports I have looked at:

Bishop of Ely v Gibbons

Walwyn v Awberry

HauxtonPCCvStephens

Wickhambrook[1]

Wise v Metcalf

Representative Body of the Church in Wales Case

Chivers v Air Ministry

Duke of Rutland v Bagshaw

PCC of Aston Cantlow v Wallbank:

http://www.bailii.org/uk/cases/UKHL/2003/37.html

Aston Cantlow PCC v Wallbank [2001] Court of Appeal EWCA Civ 713

How our forebears tied themselves in knots over this ludicrous law!

The Law Commission has decided not to include chancel repair liability in its 11th review programme last year. The Law Commission will only consider proposals for law reform if government ministers are at least willing to look at implementing its recommendations.  The Law Commission’s 12th review programme may include a review of the Land Registration Act 2002, which the Land Registry has asked for. This will give the Law Commission an opportunity to include in its proposals for a new Bill a clause making it clear whether chancel repair liability is within the scope of land registration.  If it is made clear that it is, owners whose titles are free of any notice referring to chancel repair liability will be able to be sure that it does not affect them.

The Legal Advisory Commission of the Church of England has given advice to PCCsLegal Advisory Commission advice on chancelrepairliability that members of PCCs could become personally liable (presumably to the PCC itself) if they decide not to enforce the liability. But the PCC is independent of the Church of England’s central institutions and neither they or the Charity Commission can in reality interfere with a genuine decision of the incumbent and PCC made on the basis of Christian charity and good neighbourliness.

The Legal Advisory Commission itself recognised the serious pastoral difficulties which could result from a divisive legal case in which the Church took certain individual parishioners to court, who had no particular moral obligation to the Church.

A Westminster Hall Debate on Chancel Repair Liability 17.10.2012 debate on this subject took place on 17 October 2012 in Westminster Hall – the informal debating chamber of Parliament.

Any letters from campaigners on this subject should be addressed to Lord Edward Faulks QC, Ministry of Justice, 102 Petty France London SW1H 9AJ, or your MP.  In the debate Helen Grant (the Under-Secetary of State who took over from Jonathan Djanogly) helpfully promised to keep this matter under review. I hope that Lord Edward Faulks QC (who is responsible for Civil Law under the Lord Chancellor and Secretary of State for Justice Christopher Grayling) will be prepared to introduce legislation.

If the Government is not prepared to abolish chancel repair liability outright, for fear of infringing the human rights of the church, it is possible for it to be reformed so that it is fairer. Last year I sent some notes and a draft a Bill or Measure to Helen Grant, which could be passed either by Parliament or the General Synod and these are my notes and draft Bill or Measure.    The Case for Reform 2013

19 March 2014

A further update: there seems to be a good deal going on and the various local campaigns to persuade church PCCs not to enforce Chancel Repair Liability locally are bearing fruit.  For example in Braughing, Hertfordshire, as the Mercury reported

If you receive a letter from the Land Registry saying that the a Church PCC has applied to register a notice of chancel repair liability against your title, it is advisable for you to consult a solicitor or barrister immediately.  There are in general objections that can be made to these applications. Nothing in my blog is to be contrued as legal advice.

21 March 2014

I have given some further consideration to the argument about whether Chancel Repair Liability could, or should, be abolished without the Government paying any compensation to churches affected.  I believe it is quite true that this would be contrary to the human rights of the Church and that the Church could apply to the European Court of Human Rights for compensation, but only if the legislation had retrospective effect, to halt any court proceedings which were already pending before a court, following service of court proceedings, after a notice of claim under the Chancel Repairs Act 1932 had been served on a lay rector and not complied with.  The jurisprudence of the European Court of Human Rights shows that the right to make claims for money in the future is not a right protected by Article 1 of the 1st Protocol.

In Lindheim v Norway (2009) the ECtHR held that Norway was liable to pay compensation to landlords who had been deprived of their possessions by a law giving leaseholders the right to an indefinite lease at a very low rent.

The Government would have to reach agreement with the Church through the Church Commissioners on some compensation. The Government already gives substantial support to Churches and places of worship of all religions which care for listed buildings, through the Listed Places of Worship Grant Scheme.  Clearly the Government will not be prepared to pay any compensation, but perhaps once the Land Registry is privatized, it will have a more commercial approach and find a way of relieving itself of the administrative burden of chancel repair liability. In the meantime, its actions in continuing to register notices of chancel repair liability, regardless of whether a purchaser for value has priority under section 29 of the Land Registration Act 2002, will be challenged in the 1st Tier Tribunal or by Judicial Review.

16 May 2014

There has been more in the Law Society Gazette about chancel repair liability and the registrability or otherwise of CRL. No one has disagreed with my comment on the article suggesting that CRL should not be registered and that registration or non-registration are of no legal consequence.

I have also looked again at the UPPER DENTON AND NETHER DENTON ENCLOSURE AWARD FINISHED of Upper and Nether Denton in Cumbria (1800), where the Earl of Carlisle was the lay rector, and the Rector of Nether Denton was The Reverend Thomas Ramshay.   I typed this out from a copy of the original supplied by the Cumbria Archives. It gives a clue to how Enclosure Awards were written and gave rise to Chancel Repair Liability. I have learnt from the very interesting UK Human Rights Blog on Bad and Very Bad Judges that there was a Judge Ramshay in 1850 whose father and grandfather had been land agents to the Earl of Carlisle. I wonder if the Rector was also a land agent or perhaps it was a brother of his.

16 July 2014 BREAKING NEWS FROM PARLIAMENT!

Chancel Repairs Bill [HL]

First Reading

3.54 pm

A Bill to make provision for ending the liability of lay rectors for the repair of chancels.

The Bill was introduced by Lord Avebury, read a first time and ordered to be printed.

Explanatory notes

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0038/en/15038en.htm

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0038/15038.pdf

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