Simao is speaking about The Role of Legal Education, Regulation and Government in Protecting Access to Justice. He has opted to avoid Death by Powerpoint on the basis that ‘death works very well on its own’.
It’s a testament to the inability of lawyers to agree on anything, that our programme of presentations does not involve any repetition at all.
Simao is looking at three concepts: equality (in terms of precedent and arms), fairness (procedural, substantive, proportionality) and getting what’s due to you (benefit/sanction).
Focusing on the various elements necessary to provide and sustain access to justice, with legal education as a valuable starting point. Talking about the spiralling cost of legal education, that impacts upon aspiring lawyers looking to work in legal aid areas in particular e.g. social and welfare law. A survey of members of an association that Simao is involved in showed that 82% were earning less than £30,000, so they couldn’t all afford to carry on working in the areas they were passionate about. Interesting to link this to what Graham Ferris was commenting on earlier, in terms of whether by engaging in pro bono activity and clinical legal education, lawyers are facilitating government in withdrawing legal aid.
At a law fair in Oxford a couple of years ago, Simao opened a student guide to law firms. It was all about commercial law, so he challenged the editor on the basis that the guide was not giving students a fair or representative impression of law firms. The editor took it on the chin and asked Simao to write additional text for the guide! Be careful what you wish for, eh?
At Bristol University’s alternative law fair this year, which was organised by the students, they invited a range of organisations that could talk about alternative paths to law e.g. human rights.
What does legal education achieve in terms of access to justice? Good lawyers, who can advise and advocate well, help a client achieve fairness and proportionality etc.
Simao talking about a society in which we all behave well, know what’s expected of us, do what we are supposed to do etc. Drawing on Jeremy Bentham and John Austin and their early positivist view of the law – if you don’t do what you’re supposed to do, there will be consequences. Apparently, though, we don’t all take this on board – not even all the lawyers. Shame on us!
Some of the best lawyers lose all the time (technically), but get repeat business anyway. Why? Because they try to achieve the best for their clients in accordance with what is legitimate. For example, getting 14 years for a client who was expecting to spend 20 years in jail, is a success, even while it is an apparent defeat. That is, in its way, effective access to justice for the client.
Simao is now moving into barrister mode and cross-examining members of the audience on their taxi habits, all in the name of regulation. An unwritten rule emerges – the cab rank rule. Simao explains how this is intended to achieve justice, even for highly undesirable clients. At the same time, it operates as protection for barristers, because they rule means they can do their job fearlessly and to the best of their ability, without having to justify why they are defending someone who might be obviously objectionable. He also talks about fee structures that mean you can, in theory, get the barrister of your choice at the same price as anyone else – it is not inflated simply based on who you are or your perceived ability to pay.
It’s important that governments have in mind the importance of effective legal professionals in terms of achieving justice. What are they doing about legal aid and the cost of education etc that impacts upon this? If we didn’t have legal aid, we would not now by having the Hillsborough Inquiry. Going forward, who else will benefit from the outcome of that inquiry? It will extend far beyond the original participants and that too is an aspect of protecting access to justice. Simao also comments on the government’s plan to restrict access to legal aid by immigrants to the UK – declared unlawful by the court, but currently the subject of an appeal. As a society, we need to reconcile our wish to save money (we do not have unlimited funds), with what was clearly an arbitrary rule. After all, why should we deny access to justice to individuals in any circumstances and no matter what has happened to them, purely on the basis of their nationality. Simao argues that there are fairer ways of determining what should be a priority for limited funding.