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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Councillors can say prayers

bideford-judgment-final

I find it ludicrous and outrageous that the National Secular Society objects to prayers being said at the start of Council meetings, and even more objectionable that a judge has accepted their fallacious argument that, just because prayers are not mentioned in the Local Government Act 1972, it is unlawful for prayers to be said at meetings.  Contrary to what was said in court on behalf of the claimant, there is no list of things councils can do in the Act. Anyway it is the councillors and the chaplain who pray not the council which is an artificial person and therefore cannot pray. Councillors and their chaplains do not need permission from Parliament to speak in any way they like, which is presumably why the legislation does not give them that permission.

It is right and proper for prayers to be said at Council meetings, for councillors and the public to join in. In a multi-cultural society this may involve inviting representatives of the different religions which are active in the council area, like on Thought for the Day. I resent unnecessary interference with customs and traditions that most people respect, when as it is quite clear to me that there are no legal grounds for the interference.  It is entirely a matter for each council to decide whether to hold prayers and what form of prayers to use.

I have written to the Lord Chancellor 11.02 and await with interest the appeal decision.

25 August 2012

The Rt Hon Mr Kenneth Clarke MP PC, Lord Chancellor and Secretary of State for Justice, has still not replied to my letter of 11 February. I know that he is a busy man,  and will have received a large number of letters on this subject.  There will be no appeal decision, and matters have now been overtaken by the Localism Act 2012, which has confirmed that principal Councils have the same powers as a natural person.

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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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