Gay marriage – a matter of conscience?

Prime Minister David Cameron announced his support for same-sex civil marriage at the Conservative party conference last year. The Government Equalities Office launched a consultation paper in March and the very clear message was that the Government intended to legislate to allow  same-sex marriage. According to Lynne Featherstone, the Equalities Minister, the essential question was not whether they were going to introduce same-sex civil marriage, but how.

After the poor local election results, the Government was urged to drop the idea and to focus instead on the really important issues that matter to people. Although there was no reference to the measure in the recent Queen’s Speech, it has not gone away and in the last week we have seen reports of a number of Cabinet Ministers speaking up for the proposed legislation and a number against. Last week, Sir George Young the Conservative Leader of the Commons announced that there would be a free vote on the topic as it is a “matter of conscience”. Speaking on the BBC’s Andrew Marr programme this morning, Nick Clegg argued that this was not the case – it is not a matter of conscience. In my view he is right.

In passing the Civil Partnership Act 2004, the Government created a legal institution that conveyed the same legal rights and responsibilities as civil marriage and could be, and was, viewed by many as a “stepping stone” to marriage or, at least, a means to secure legal recognition of same-sex relationships.

There is no sustainable legal argument for preserving the dual system of enabling marriage only for opposite-sex and civil partnership only for same-sex couples. The latter now receive access to equivalent legal rights save for the ability to marry and to describe themselves as married.

This marks same-sex couples as inferior. They are excluded from marriage, which is the universal system for legally recognising a loving, committed relationship between adults. As the number of European countries that allow same-sex marriage is increasing it is only a matter of time before the European Court of Human Rights rules that a failure to allow same-sex marriage is unlawful (see the application lodged on 2 February 2011 – Ferguson and Others v United Kingdom).

The state should recognise the commitment made by same-sex couples and provide them with the same opportunity to recognise their commitment by way of marriage if that is what they wish to do.

Furthermore, it should be possible for same-sex couples to enter into a religious as well as a civil marriage where this would be allowed for their particular religion.

Neither of these can properly be regarded as a matter of conscience. The Government is not proposing to force churches to marry same-sex couples and will not interfere with any particular religion. Rather, it is a question of ending discrimination and should in my view therefore be supported.

A moment of reflection – the bigger picture

Those of you who are family lawyers and still committed to public funding (legal aid) will know that the first step in the tender round for the next contract (intended to commence in April 2013) opens tomorrow. It seems like only yesterday that we were negotiating with the “Bravo” on-line tender software. Oh joy.

Of course, post LASPO, there will be a lot less legal aid work to be had. So far, in these posts, I have focused on the impact on family law but it is worth reflecting on the bigger picture. I attended the annual conference for the Presidents and Secretaries of Local Law Societies at Chancery Lane a week ago and attended a workshop that was co-presented by Carol Storer, Director of the Legal Aid Practitioners Group, and Andrew Caplen, Deputy Vice President Elect of The Law Society. Carol gave us a helpful note which summarised the impact of the cuts across the board.

When I was young, legal aid was available for advice and assistance for all those who were financially eligible in any area of English Law. Andrew has described the changes since as a “retreat from the high-water mark” and he is right. The main areas now to be withdrawn from scope include:

• clinical negligence (except where a child is injured at birth or within the 8 weeks after birth)
• all consumer matters
• all Criminal Injuries Compensation claims
• all debt (except where there is an immediate risk to loss of the home)
• all employment matters
• all education matters (save for Special Education Needs)
• all housing matters (except where there is an immediate risk to loss of the home, homelessness assistance and “serious” housing disrepair cases)
• all non-detention immigration cases
• all private family law (other than those meeting the criteria for domestic violence or child abuse)
• all welfare benefits cases (save for appeals to the Upper Tribunal)

Some of the cases that still remain in scope, e.g. some of the debt cases, will have to be dealt with via a new telephone gateway rather than face-to-face advice.

Last week, I was pleased to be invited to join the steering committee of the Keele Legal Community Outreach Network, an initiative of the Law School at Keele University. This brings together partners from the University, the voluntary sector and the local profession and is intended to help us to work together to plug the gaps that will arise. The point was made that most of these agencies are seeing not only a loss of legal aid funding, but at the same time a loss of money from the Lottery (which appears to be largely focusing on something to happen in London in August), local authorities and charities (which are all equally short of funds).

Stoke on Trent CAB say that they will only be able to carry out half of the existing debt advice but will have no resource at all to advise on employment or welfare benefits matters. They will not be able, for example, to help with benefits appeals, some 40+% of which are successful. And all this at a time of great change in benefits law – the changes made by the Welfare Reform Act are being implemented as we speak.

Stoke on Trent is a poor area. If you are interested, you should read “Making Welfare Work“, a local response to the then Welfare Reform Bill jointly published by Stoke on Trent CAB and Brighter Futures Housing Association in July 2011. This shows that the changes in benefits legislation will remove something of the order of £105M per year from benefits payments to the local community. That is money that would have been spent in the local community – so these changes will have an equivalent impact to the closing down of a significant number of large employers.

In that context, the cuts of £350M across the country from the legal aid budget seem almost insignificant. What is plain, however, is that there are going to be a great number of “victims” of these cuts and most of them are to be deprived any real source of advice, assistance or representation. A scandal in the making. It will lead, eventually, to a sense of public outrage, the like of which we have not seen for generations.

It is for those of us still working to do what we can to help, but more importantly to build the case-studies that will help to generate public awareness and build pressure for change. We may have lost the first round, but now the struggle really begins…

Winning more business

Just come back from attending the Conscious Client Conference with the catchy title of Winning More Business. Very well attended. Held, as last year, at the lovely Coombe Abbey just outside Coventry. Speakers included the following:

Stephen Gold of SG Consultancy on rainmaking. He described this as really hard but more important than the technical legal work and encouraged us to think in terms of sales rather than business development. Be honest. We need to build confidence and acknowledge that most people buy with their hearts rather than their minds, regardless of what they may say. We need to do more cross-selling and have confidence in our colleagues to deliver. Are rainmakers born or bred? Well, as was once observed, whilst you can train a turkey to climb a tree, it is a lot less effort to buy a squirrel.

Next up was Bernard Savage of Tenandahalf. He was looking at business development best practice. What are the smart firms doing? 2 key trends are firm differentiation and the investment in soft skills training, which is something I have been harping on about for years. There is also a need for proper networking with active participation rather than simply attendance. We need true engagement. We need to tell our story and make sure that it is relevant to the client – you will be familiar with the “So what?” test. Stress the benefits and not the features. Soft skills includes leadership, communication (e.g. NLP), HR skills and business development. We will get what we measure. Focus on measuring true performance indicators and not simply the financial results.

Then came our mate Simon White, from Wilkinson Read, who is presently working with us. He introduced his “Local Hero” initiative and repeated a view I have heard elsewhere – that new entrants will expand the market. In an underdeveloped market, like the legal market here today, research shows that around 10% are buying on price alone, another 40% think that they are but have latent needs which may be exploited and can be moved away from that position. Our staff must be willing to be of service – the here to help mentality.

After lunch, Steven Pearce from Steven Pearce Associates gave a lively presentation entitled What is your story? He explained the importance of stories to human development and introduced the elements of setting, characters and conflict. What is our mission? What is an example of a success story? This should give potential clients an idea of what it would be like to do business with us.

Andy Green from Andy Green Consultancy spoke about creativity and the value of sagacity (not a home for the elderly, but the forward-looking equivalent of hindsight). Darwin’s survival of the most fit, the most adaptable. Flexible thinking. It has always been tough out there but you can overcome. After all YOUR ancestors survived the Black Death. Look for inspiration within 12 feet. Make a decision. Be brave. Take action.

Peter Rosenwald of Chartered Developments spoke on differentiation by sector rather than by service. Much of the discussion with other delegates during the breaks focused on this. It is simply not credible for a firm, much less an individual fee-earner, to say that they specialise in everything and can act for everyone. He said that it you could identify a suitable sector, you could then work on it and aim to become an expert within a year. The effective use of IT and social media can help to facilitate this.

Only a snapshot above, but all in all a really good conference. Unlike those of many providers (Conscious are our web providers), this was of real value and not a sales pitch. Better still, I won a bottle of champagne.

Put me down for next year.

It could have been worse – LASPO gets Royal Assent

Well you have heard the news. LASPO Bil got Royal Assent last week and is now an Act. The LSC are aiming to implement the Act by April 2013 and to start the next round of contracting this month. If all goes to plan, the demise of legal aid for most private clients is less than 10 months from now.

Although the Lords’ amendments were defeated, Ken Clarke (who I met when he came to Stafford just before the last General Election – but that is a different story) did make a number of concessions in the Commons:

• The definition of domestic violence has been amended to reflect that used by ACPO
• They will accept broader evidence of domestic violence. Rather than insisting that the victim has obtained an injunction order within the previous 12 months, will accept notes from GP or social worker, entrance to a refuge as well as proceedings concluded by way of undertaking
• Time limit for the above extended from 12 to 24 months
• Legal aid will now be available for cases of internal child abduction
• The plan to force clients with more than £1000 of savings to pay a £100 contribution has been dropped
• Govt will be able to add matters back into scope in the future without the need for primary legislation

So, on balance, some welcome improvements to what has been hailed as a bad bill. These will go a little way towards helping the most vulnerable families and their children.

The next  step is to work out how to operate a legal aid practice in this brave new world taking account of not only the recent 10% rate cut but also a projected drop in eligible client numbers of the order of 75% come next April.. Any ideas.

Your toothbrush in my bathroom? Fancy a cohabitation contract?

I had an interesting conversation with Melissa Kite from The Daily Mail a week or two back and her piece has just been published - here . Not a bad piece.

The comments posted by readers display a wide range of views – from the idea that a relationship is doomed if it is approached with such a level of distrust that a written agreement is considered necessary to the idea that this should be a matter of course.

The point that commentators who take the former view are missing is the obvious one that the relationship – indeed ALL relationships – are indeed doomed. I do not mean this from any cynical viewpoint, but it is a statement of reality. Each and every relationship will one day come to an end – whether married or not. The fact is that either the couple will separate or one of them will die.

In the former scenario, they may well be able to do this amicably and come to a reasonable settlement, as many do. On the other hand, they may not. Conversely, if one of them has died, the survivor then has a potential clash with the personal representatives of the deceased, who are likely to be other family members and who may have very different views regarding the relationship.

Remember that although some cohabitants do have a legal right to bring a claim against the estate of their deceased former partner, very many do not. In order to claim at present, the claimant needs to show that the cohabitation extended more than two years (and fair enough you might say) or was a dependant at the date of death.

It is pleasing that the Law Commission report on Intestacy and Financial Provision Claims on Death, published in December 2011, recommends that those who have been together for more than five years  would have the right to inherit on death under the intestacy rules (i.e. where there is no will), or two years if they have a child together who was living with them at the time of death.

 

Alice in Wonderland – the Government Response to the Family Justice Review

Monday saw the publication of the Government’s response to the Family Justice Review, subtitled “A System with children and families at its heart”.  It was good to see real support voiced for “radical reform” to cut out unnecessary delay and to increase the use and availability of mediation and a greater encouragement for early, consensual parental plans which can survive relationship breakdown.

In the foreword there is also reference to the Munro Review’s recommendations on child protection, Martin Narey’s work on adoption, legal aid and Civil Justice Reforms all of which “seek to ensure disputes are resolved early, speedily and more affordably” demonstrating the Government’s “determination to deliver an approach to family justice which puts society’s needs ahead of bureaucracy”. Sounds good.

The Government has accepted the over-whelming majority of recommendations made in the Family Justice Review. That is to be welcomed. There is an undeniable case for change. The system is under strain with an increasing workload and with cases taking longer than they should. In particular, practitioners have been calling for over a generation for a single Family Court and a single point of entry and will welcome this. The introduction of a child’s arrangements order in place of contact and residence in the case of parents is to be welcomed. Moving divorce to a more administrative process is also a step in the right direction.

The present lack of resources is not the only factor at play here and the Review acknowledged that simply increasing funding was not the answer. Whilst this must be correct, it is difficult to see how very many of the needed reforms can really take effect in the present climate where there is already insufficient funding and were resources are already being cut to the bone.

There is further reference to the legal aid reforms which the Government believes “go in the same direction as” and “support the aims of” the proposed changes to family justice, such as enabling couples to resolve their disputes without needing to go to court. I am not so sure that I accept the link. The proposed legal aid reforms will remove a huge number of clients from scope, which will make it more difficult for them to obtain the advice and information that they need if they are to make sensible arrangements and resolve matters outside of court. There still seems to be a general belief that going to see a lawyer necessarily equates with going to court and must therefore be seen as a BAD THING. Of course, as research over the years has demonstrated time and again, lawyers are usually responsible for managing their clients and for brokering agreements between them. For those cases that go to court, then lawyers are increasingly responsible for actively managing those cases and in smoothing the court process.

One might well pause and ask whether the Government’s aims are actually promoted by initiatives such as the proposed ”Modernisation” programme that is presently under (well-disguised) consultation and which in effect sees the imminent closure of the public counter at most court buildings for most purposes? Surveys are quoted which are said to show that most visits to the counter are “avoidable” and users will therefore be compelled to write in or to telephone (and if phoning this is likely to be a regional or national centre rather than the local court itself) rather than to visit. Not all of our clients would find that an easy ask.

By way of example, consider an individual wishing to issue a divorce petition and to claim fee remission on the basis of financial hardship. Such an application cannot presently be made by post because the court insist on seeing original documents proving income and bank statements etc all of which must be dated within the previous month. The problem is that as it often takes the court several weeks to look at the papers, they are usually out-of-date by the time that they are actually considered and a postal application would therefore be rejected. Commonly there is a simple query which could readily be answered in person but which would presumably now have to be the subject of a letter to the would-be petitioner, necessitating one or more letters in response, by which time the original documents would be out of date. You may not realise it, but this process presently applies to any client on legal aid. It used to be the case that court fees were not payable by those who were on legal aid. Whilst they may be so poor that they qualify for free legal aid, they now have to prove that they cannot afford the court fee of £340. To put that figure into context, the TOTAL fee paid under legal help to a lawyer for dealing with an undefended divorce on behalf of the petitioner is now (following the across the board reduction of 10% in legal aid fees this month) £146 plus VAT. Broadly the same figure as it was in 1994.

Mediation is of course a great help in very many cases and a skilled mediator will help couples to facilitate a lasting agreement, but provision is patchy. In some areas of the country there is very little and the Legal Services Commission acknowledge (at least informally) that there are gaps. Further, there is no formal accreditation process for mediators – whilst those who wish to undertake publicly funded work have to be formally accredited to do so, anyone else can call themselves a “mediator” and take on private clients. Will there be anything like enough mediators and will they be appropriately qualified to fill the gap?

If the proposed scope changes go forward, then what is to become of the large number of unrepresented litigants – the so-called litigants in person? How will they navigate this brave new world? Who will they turn to for advice? What will happen to the huge number that are assessed (by the mediator) as being not suitable for mediation? Will the proposed new web service and new telephony service alone adequately fill the gap?

The Government’s response to the Family Justice Review reads well but feels as if it belongs to a different era. How are any of the necessary reforms to be resourced in the current climate? How can we ensure that less, rather than more, cases go to court if many would-be litigants are not suitable for mediation and are going to be denied access to legal advice and lack the knowledge and skills to enable them to negotiate a workable agreement? What will the consequence be if it made harder for individuals to attend court, either because of the closure of many of our court buildings or because there is no one to assist them if they make their way their? How can further reductions in court administrative staff and judicial hearing days do anything but lead to more delay for those cases which need an imposed solution, as many will still do? There will surely be a host of challenges on the basis of access to justice and cleverer people than I have already written pointing out the problems from the human rights viewpoint.

This all has the makings of a “perfect storm” and there will be many people who suffer. In the meantime, the Government will be happily moving towards implementation of these proposals, a process which is clearly going to be measured in years. Without proper funding, these changes are never going to happen or will never have the effect that is hoped for. With proper funding, it could well prove to be too little too late for so many families and children.

 

 

Unintended Consequences – the true cost of reform

The publication of an independent report revealing the true economic and social cost of the Government’s proposed £350 million legal aid cuts merits far more media coverage than it actually secured  - and a separate blog entry of its own.

The report, by Kings College London, shows that the proposed changes will incur new costs for the tax payer by simply sifting the burden onto other parts of the public purse, such as the NHS, and will give rise to unbudgeted costs of at least £139 million which would wipe out some 60% of the claimed savings.

The report author, Dr Graham Cookson, makes the point that without a proper trial it is impossible to say for certain what the impact of the proposals will be, just as it is impossible for the Government to assert that there will be a net saving of £270 million per annum.

In addition, earlier research has identified other knock-on costs not accounted for by Government.  For example, a CAB report in July 2010 suggested that cutting £60 million from social welfare legal aid will cause the withdrawal of advice services that presently save the state £339 million in spending on other services.

A copy of the report was made available to members of  the House of Lords who support delaying the legal aid reforms until the Government has published an assessment of the wider costs they will cause for taxpayers.