The Right to Assistance – The Public Duty to Assist by Jane Krishnadas

The Hands of the CLOCK; Rights as the Intersections

Since the Legal Aid Sentencing Punishment and Offenders Act, 2012 – ‘The Government’s evisceration of Legal Aid leaves those of us involved in the court system feeling a bit like the  inhabitants of an island about to be hit by a tsunami… (Saunders, The Lawyer, 2013).  Having lived, worked and researched in a post-disaster situation, the comparison may seem extreme. However, one year after LASPO, the collaborative efforts of the Community Legal Outreach Collaboration Keele, (CLOCK), have been just in time to assist more than 100 litigants a month facing the loss of livelihood, property or families, which replicated across the UK reaches the disaster scales of 100,000’s of people.

Theoretically, the comparison of the post-disaster sites lies in Arendt’s framework of diminished agency and a declining state (The Human Condition), within which I’ve explored the role of rights within different ‘Scales of Justice’ (Fraser), as a transformative rights strategy; reflecting voices, revaluing resources and relocating sites of justice; (Rights as the Intersections, A Transformative Methodology).

CLOCK

CLOCK Logo

The CLOCK logo presents a visual and practical blueprint of the interrelation of rights and duties within the local justice system (see CLOCK partner leaflet). The Community Legal Outreach Collaboration, Keele (CLOCK) was formed as an umbrella of professional public, private and third sector organisations, to develop a new role ‘the Community Legal Companion’, premised upon the McKenzie Friend principles,  to safeguard the litigant- in-person’s rights to assistance and access to legally-aided and affordable legal services, within the shared commitment to access to justice.

The Community Legal Companion is centred within CLOCK, reflecting Crenshaw’s principle ‘that those concerned with alleviating discrimination’ should begin with ‘addressing the needs and problems of those who are most disadvantaged… for which placing those who are currently marginalised in the centre is the most effective way to resist efforts to compartmentalise experiences’ (‘Demarginalising the Intersection of Race and Class’, Crenshaw, 1989; 167).

However the Legal Companion presents a different starting point to Martha Fineman’s ‘Vulnerable Subject’ (2008). The Legal Companion is an assistant to the legal subject, premised upon the right to reasonable assistance which is embedded within the McKenzie Friend Practice Guidance, July 2010. The text clearly affirms ‘The Right to Reasonable Assistance’. Critically the right of assistance is the right of the litigant. It is not a right of the gratuitous, commercial or politically motivated McKenzie Friend.

The Legal Companion cannot act as an agent for the individual and has no authority to act or speak or advise in any way on behalf of the individual. The litigant’s voice therefore remains their own, as does their actions and decisions- in the words of a litigant, the legal companion is ‘My Calm in the Storm’ (BBC Radio Stoke Discusses Legal Aid and CLOCK).

It is the duty of the court to grant the right of assistance, or provide sufficient reasons why the litigant should not receive assistance. The decision of the court is based upon procedural fairness, the right to a fair trial and the efficient administration of justice. The Chair of the Civil Justice Council Working Party on Access to Justice for litigants-in-person states ‘It is impossible to overstate how important it is for people to have access to justice in a free society”, and calls for ‘concerted leadership to drive collaboration’ (Civil Justice Council Calls for Action).

The CLOCK dial represents a collaborative shared duty to the right of assistance. The Courts provide training on the court forms for suspending evictions, debt, divorce and Children Act applications. The Police and CPS provide training on bridging the civil and criminal processes. The Charitable organisations, circle the CLOCK, providing supporting evidence for legal aid applications, and holistic support; the first quartile, housing and complex needs, Brighter Futures, ASPIRE; the second, family relations, YMCA Family Services, Arch, Savana, Voices of Experience;  the third, community safety, Savana and the fourth, welfare and discrimination, Staffordshire North and Stoke-on-Trent Citizens Advice Bureau, SNCAB. The inner circle of the partner law firms Nowell Meller, Salmons, Young and Co, Lichfield Reynolds and colleagues within the North Staffordshire Law Society‎, and Regent Chambers and Rowchester Chambers,  ensure the companion acts within the professional duty to refer to mediation, legally-aided and affordable legal services. (See: Law Society Litigant in Person, Practice Note; and Bar Society: Guide to Representing yourself in Court).

The legal companion, provides a holding hand, the hands of the clock, to pivot the range of public, private and third sector services, which intersect the complex nature of shattered lives (see Intersectionality and Beyond) for which legal companions have assisted clients to trace multiple legal pathways through criminal, civil, welfare, immigration and domestic violence services (BBC News, Keele students help legal aid gap).

The daily presence of the legal companions in the court, presents a mechanism to draw together evidence to satisfy legal aid criteria, monitor the scope and impact of LASPO on the local community and highlight cases to challenge the fairness of s.10, LASPO, as recommended in the R.1, R.3, and R.4, of the Low Commission Report, Jan 2014.

The hands of the CLOCK  reached the hour, when the Head of Legal Aid visited the domestic violence refuge and listened to ‘Voices of Experience’, to contribute their perspectives on access to legal aid to the  Parliamentary Debate on Baroness Scotland’s Civil Motion to Regret (Head of Legal Aid Commends Legal Companion CLOCK initiative, as “a really positive initiative and could provide a model for similar programmes across the country”).

The endorsement of CLOCK as: an ‘imaginative scheme’ from the Stoke-on-Trent Judiciary; ‘a strategic development in legal education’ (the HEA, Strategic Summit, 2014); an ‘excellent service which epitomises the practical implementation of several of the Working Party’s recommendations’, (Civil Justice Council) and a case study of ‘good practice’ within the Legal Services Consumer Panel Fact Finding Visit, has secured the interest for wider collaboration from Birmingham, Birmingham City and Wolverhampton Courts and Law Schools.

CLOCK has maintained its momentum via the pendulum of in-kind resources, exchanging the costs of court, police, CPS, solicitor barrister and local council time with the experience of the legal companion assistance to navigate the most direct and supported pathways to meet unmet legal needs.

As the past President of the Law Society concludes ‘Sadly the cuts are inevitable’ it may be important to remember the Public interest litigation (S. Krishnadas v Government of Maharashtra). Filed by the, then, law student who initiated the Social Legal Information Centre, Omerga, to fact find information, and with the support of the independent judicial inquiry on the constitutional right to equality won a High Court order for the State to provide financial compensation, housing and basic needs to the earthquake-affected population (see with Krishnadas Sukumaran, Reclaiming Rights, Pluto Press, forthcoming).

Twenty years on, the comparison may seem a travesty, with in effect, “the cessation of the ‘Legal Aid’ programme as it was and its evolution into a new mutation with centralised and commercial controls run from regional centres”, yet the provision of a local service (CLOCK) with “access to citizens in the community will become a resource of huge importance for those who rely on the use of the national legal system. The City which holds the ‘signed’ Magna Carta should also seek to set an example of the standards of performance expected of that document” (David Hallmark, CBE, Worcester Law Society, Visiting Fellow, Oxford. See 2015: Unification of the four surviving original copies of the Magna Carta, celebrating the 800th anniversary of the issue of the Charter).

It is at this intersection in time, where the hands of the CLOCK may indicate a potential for ‘remaking and restructuring the world’, (Crenshaw, 1989; 167)… or at least to bridge our constitutional rights and duties within local spheres of justice… time will tell.

Please note that with due regard to the wider CLOCK partnership, this is a personal narrative of my experience and views. For further information please contact j.h.krishnadas@keele.ac.uk