Hale: consumer interest has to be balanced against need to protect rule of law
The new president of the Supreme Court yesterday joined what appears to be a growing clamour to reinstate public funding to provide early legal advice.
Speaking at a media briefing following her appointment earlier this week, Lady Hale also reiterated her concern about the possible downgrading of the objective in legal regulation to encourage an “independent, strong, diverse and effective legal profession”.
At this week’s Conservative Party conference, justice committee chairman Bob Neill made the case for legally aided early advice in divorce work, while The Times reported that Solicitor General Robert Buckland acknowledged “a strong case for a significant increase in funding for early advice legal aid”.
Asked about the current Ministry of Justice review of LASPO, Lady Hale said: “Clearly a review of LASPO is necessary because some of the cases from which legal services, publicly funded legal services were withdrawn were probably a false economy and so it needs a good look at.
“One of the possible difficulties is that under the Act as it currently is, in most cases all publicly funded legal services are withdrawn, not just representation in court, not just litigation services, but legal advice.”
She said “so many legal problems can be solved” by early advice in housing or divorce disputes.
“The job of family lawyers has always been, as much as possible, to keep people out of court. It is to negotiate and agree a solution to the family break-up and that is very, very important.
“I think it is very difficult for a husband and wife or a mother and father to do it for themselves. They do not know what the score is. They do not know what the law is. They do not know what they are entitled to. They do not know what a court is likely to do and that is even if they are on speaking terms. Rather a lot of the time, they are not.”
Last year, in its vision for regulatory reform, the Legal Services Board said the objective of encouraging an independent, strong, diverse and effective legal profession was problematic for several reasons, not least that the profession’s concerns did not always coincide with the needs of the public interest or consumer protection.
Lady Hale said her worry about this – albeit “at a very high level of generality” – was that “for most of us in the courts, we think a strong and independent legal profession is an essential part of the administration of justice”.
She continued: “I do not equate access to justice with access to lawyers. They are not the same thing but nevertheless access to lawyers is often of crucial importance in securing access to justice and so we think an independent legal profession is of particular importance because independence means that you have a duty to the court which is over your duty to your client and there was concern about that.”
Pressed by Legal Futures about whether she was concerned the board was pushing the consumer interest more than the wider public interest, Lady Hale replied: “Of course, we are not against the consumer interest but [it] has to be balanced against the need to protect the rule of law.”
On other issues, she said she was “delighted” to welcome another woman to the Supreme Court, Lady Black, “at long last”.
“I think it was Madeleine Albright who said that there is a special place in Hell for the first women who pull up the drawbridge after them and I have been wanting to avoid that special place ever since I became a Law Lord in 2004. I just hope that it will not take another 13 years before a third, fourth, fifth or even sixth woman joins the court.”
She said it was unlikely to change the atmosphere in the court, “but I think it may slightly change the topics of conversation at lunchtime”.
Lady Hale acknowledged, however, the lack of ethnic diversity at the court. “The way to improve the diversity at the top is to improve it at the bottom and then try and progress the careers of the good people who join the judiciary in the lower ranks,” she said.
“That is what we should be looking for and it is the job of the Judicial Appointments Commission to do its best to widen the pool of those who are available for selection. Selection must always be on merit… but they are making considerable efforts to encourage a greater diversity in applications and things are improving.”
She also suggested that judges could be recruited from areas other than the practising Bar – she herself joined the bench after a career as an academic and then a Law Commissioner.
“Women are under-represented in the senior ranks of the independent practising Bar but that is not the only place from which judges can be recruited and there are women, lawyers, excellent women lawyers from other parts of the legal forest from whom, I hope, some can be persuaded that judging would be a good career for them and I think the same is also true of other minorities.”
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