Friday, 29 January 2010

How Is Access to Essential Services Guaranteed?

(Thanks to Daily Telegraph)

Since my visit to CES in Coimbra, Portugal recently I've been thinking about the changing landscape of access to justice. For me the formal state system of courts has assumed a much less dominant role in the last 10 to 15 years. And even though legal aid in the UK has just enjoyed its 60th birthday, it only applies to criminal cases and a few types of civil matters. And government is seeking to reduce legal aid expenditure in the future.

So what has happened to the landscape? How has it changed? And has it improved or deteriorated?

Two events have developed my thinking. One is encountering the research project on civil justice systems and access to justice at Oxford run by my colleague Dr Magdalena Tulibacka. The other is attending a recent seminar on the delivery of essential services held by the Centre for Consumers and Essential Services (CCES) at Leicester.

The Oxford group has been mapping non-judicial dispute resolution systems. Their list has over 100 institutions involved in this activity, from large organizations such as the Financial Services Ombudsman to small ones like the Double Glazing and Conservatory Ombudsman. I recommend their paper Civil Justice in England and Wales--Beyond the Courts. This clearly shows that courts are minority institutions in access to justice today.

The CCES seminar was on the delivery of essential services and human rights. The lead discussion paper What are the effects of changes in the delivery of essential services--how do providers relate to consumers? argued that we are living in a radically altered landscape. Communication between consumers and providers had moved away from face to face interaction to electronic communication, either through the internet or with call centres in places like India.

Tony Herbert, social policy officer for the Citizens Advice Bureaux (CABs), demonstrated that much of the work done by CABs was navigating the complexities of life which mainly mean communicating with these remote centres with all the accompanying problems of miscommunication that inevitably arise. Language difficulties, hearing impairments, limited or no access to the internet or no understanding of it, even being able to express a problem cause difficulties for many people. This is especially so when providers work off inflexible scripts.

Andrew Kaye of the Royal National Institute for the Blind put forward the idea that there are gradations of essentialism, that essential services aren't just the basic utilities but can include all forms of communication such as computers and television or radio.

Some of the providers explained that it wasn't always easy to discern if there was a problem with a customer--blind, hard of hearing don't necessarily come across the phone line.

The result is that access to justice has come to mean something more than its original purpose. It now incorporates the difficulties of coping with modern life some of which are included within our human rights.

The question is what role does the state now have in access to justice? The courts still exist and are busy, lawyers are earning fees, but the vast majority of "trouble cases" are not resolved within the court system. It is too remote, slow and expensive. The informal modes of dispute resolution now predominate.

To an extent the state is content with this. Instead of having to play a direct role it can assume the guise of regulator of these different institutions. It has not yet done so with many of them and it may not. But we are going to have to teach our students how to find their way around these new systems. And that's presuming we know our way around.

Saturday, 9 January 2010

New book by Danny Nicol

Danny Nicol's new book, The Constitutional Protection of Capitalism, will be published in the first week of February. Here is the blurb of the book:

In 1945 a Labour government deployed Britain’s national autonomy and parliamentary sovereignty to nationalise key industries and services such as coal, rail, gas and electricity, and to establish a publicly-owned National Health Service. This monograph argues that constitutional constraints stemming from economic and
legal globalisation would now preclude such a programme. It contends that whilst no state has ever, or could ever, possess complete freedom of action, nonetheless the rise of the transnational corporation means that national autonomy is now significantly restricted. The book focuses in particular on the way in which these economic constraints have been nurtured, reinforced and legitimised by the creation on the part of world leaders of a globalised constitutional law of trade and competition. This has been brought into existence by the adoption of effective enforcement machinery, sometimes embedded within the nation states, sometimes formed at transnational level. With Britain enmeshed in supranational economic and legal structures from which it is difficult to extricate itself, the British polity no longer enjoys the range and freedom of policymaking once open to it. Transnational legal obligations constitute not just law but in effect a de facto supreme law entrenching a predominantly neoliberal political settlement in which the freedom of the individualis identified with the freedom of the market. The book analyses the key provisions of WTO,EU and ECHR law which provide constitutional protection for private enterprise. It dwells on the law of services liberalisation, public monopolies, state aid, public procurement and the fundamental right of property ownership, arguing that the new constitutional order compromises the traditional
ideals of British democracy.

The book is available from Hart Publishing, Oxford.


Friday, 8 January 2010

John Flood's Random Academic Thoughts (RATs): The Future of Global Law...

John Flood's Random Academic Thoughts (RATs): The Future of Global Law...

Thursday, 7 January 2010

Do You Know What Lawyers Do?

(Thanks to rutty)

When I lived in the East End of London, I acted as a kind of bush lawyer for my neighbours. All sorts of problems came up: how to keep disability benefits going; how to get a new license for a pub; how to deal with a stolen credit card; and what to do when a decree nisi hadn't been converted into a decree absolute with the result no benefits could be claimed.

All of these people avoided going to lawyers. Lawyers were expensive, remote, and alien. I wasn't.

So when the Legal Services Board published research recently with the headline:

68% of Consumers Have "Little or No Knowledge" of What Lawyers Do

I wasn't surprised. (Hat tip to Charon QC.)

According to the LSB's research more than 60% of respondents had used legal services, and 53% of them within the past 5 years. Did they shop around for the right lawyer? No. Only 14% did that. The purchase of legal services appears to be crisis buying rather than pleasure-based purchasing.

Of course, the above applies mainly to individual consumers rather than business users. Having said that I should modify this statement because small and medium enterprises (SMEs) do have difficulty in finding appropriate and cheap legal services. This is why groups such as the Federation of Small Businesses run legal advice schemes for their members.

The basic problem with most research in this area is that our definitions of legal needs are fuzzy and imperfect. Early studies by the American Bar Foundation showed that the public only obtained legal services for a small proportion of their legal needs. Indeed, a widely-quoted paperon the life histories of disputes, for example, showed that the most common form of dispute resolution is "lumping it".

Bert Kritzer looked at the studies on legal needs in a 2008 paper, Examining the Real Demand for Legal Services. He identified the main problem as a lack of clear baseline data. We need to survey the entire population. There are indications in the extant research (in the US) that cost is not the determinative factor in the use of legal services, but rather lack of knowledge.

Lack of knowledge comes in two forms. First, there is the lack of understanding that a problem might have a legal aspect, eg. stopping of welfare benefits. Second, there is a lack of knowing that a lawyer might be able to help in this situation.

It is these types of knowledge deficits that open opportunities for ambulance chasers, debt consolidators, and claims handling companies who are eager to prise money out of clients than solving their problems.

Lawyers are to blame if consumers don't understand what they do. Despite changes in legal procedure the abandonment of legal Latin (in the UK), the major growth is in the use of ombudsmen and other informal resolution procedures. Institutions that don't require the intercession of lawyers.

And this is where Tesco Law will make its impact. With simplicity, ease of use, friendly representatives, transparent costings, extended opening hours, ready communication, and a firm quality control.

At the moment most lawyers haven't a clue how to respond to that and that is assuming they are aware there is a problem.