Over the last few weeks, I have been looking through the Legal Action magazine archives. It requires a high level of discipline to stay focused on the particular task and stop yourself reading every article, such is the richness of the material. In this issue, we are focusing on housing (so, as a former housing lawyer, I get to indulge a little), but don’t worry, we will be focusing on all the areas of law LAG has covered over the last half-century, in the coming months.
I pull out a binder marked ‘1973’ and as I turn to the May 1973 Bulletin the names are instantly recognisable: ‘Injunctions in the county court’ by Stephen Sedley (as he then was) and ‘Cohabitation and benefit’ by Henry Hodge. The roll call of brilliant contributors continues through the decades: Geoffrey Bindman, Philip Britton, Richard Drabble, Brenda Hoggett, Dawn Oliver, Martin Partington, Michael Zander …
In the April 1990 issue, I find an article by Anne Grosskurth called ‘Eleventh-hour solutions’, in which she explores county court advice schemes around the country, as the Legal Aid Board was about to consider new proposals. I’m interested, especially as the most recent consultation on new county court proposals for the duty scheme has just ended.
There is an interview with money adviser, Nick Morgan, who works at the new advice and representation project at Lambeth County Court. He says, ‘… people are talking about county court advice schemes like they are the flavour of the month. The real problem is that people don’t turn up at court in the first place. They think the court is there to punish them and that they are throwing themselves on its mercy. We want to help people long before it gets to that stage.’
Anne agrees: ‘County court advice schemes are undeniably valuable – both as a service for unrepresented defendants and as a means of ensuring that possession proceedings are conducted more fairly. But they do not address the fact that most defendants neither get advice before the day of the hearing, nor do they come to court. They are no substitute for legal aid in housing nor, as important, for adequately resourced advice agencies.’
Thirty-two years later, Simon Mullings, joint chair of the Housing Law Practitioners’ Association, sets out the provisions
outlined in yet another consultation on Housing Possession Court Duty Schemes (which replaced county court advice). A key proposal is the Housing Loss Prevention Advice Service – the idea being that people will be able to get debt and benefits advice along with the usual duty housing advice when they face court proceedings. Although this seems a good idea in principle, there is no analysis of the financial viability of the proposal nor any thought of where the advisers might come from, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 having cut those areas of expertise in 2013.
It’s Groundhog Day with legal aid financial eligibility: the March 1976 Bulletin
has an article entitled ‘Simplifying the financial side of legal aid’, which could be replaced with headlines outlining the 2022 Legal Aid Means Test Review. We also have the Independent Review of Criminal Legal Aid, which Rohini Teather outlines at page 6 of this issue
I worry, having started to go through LAG’s history for the 50th anniversary, that we are in jeopardy of losing learning from the past that could shape the future. Those working and writing about access to justice and legal aid have a depth of knowledge and an awareness of what is needed that could shape good government policy. The recent report by Lisa Whitehouse
, professor of property law, policy and practice at the University of Southampton, assesses the effectiveness of the changes to court listing for possession cases during the COVID-19 pandemic and the six-month pilot mediation scheme. The report is worth reading and raises many questions around engagement that could be taken up by government.
If we continue to provide sticking-plaster advice and assistance, we don’t get to understand what is causing the debt that leads to possession and we push people into crisis management of their problems. Legal aid provision is scarce and too siloed to be an effective means of resolving the complex legal issues that people face; it needs a complete change in approach and focus.
I am conscious that this will be a challenging year; after the introduction of the Police, Crime, Sentencing and Courts Bill
, which aims to severely limit the right to protest, comes the consultation on human rights law. The government says it is committed to updating the Human Rights Act 1998
and replacing it with a Bill of Rights. I have only used human rights provisions in relation to housing to fill the gaps in domestic legislation that were unfair – like the two-month mandatory ground for possession in social landlord cases. Using it meant vulnerable people were allowed to stay in their homes; for others it has given them liberty, freedom from torture and something as simple, but fundamentally important, as an explanation as to how their loved one died.
I hope LAG will be around for another 50 years to not only document but provide the voice and the tools needed for the challenges ahead.