The new year's resolution Chris Grayling should keep
Hands up, who has already broken their new year’s resolution? Apparently about 75 per cent of us will fail after just nine days, which makes them hardly worth bothering with (unless, say, your resolution was to decorate the living room by 8 January 2013). Mine are suitably unoriginal, but since I recommit to them at least once a month they don’t really count as new year’s resolutions.
It would be nice to think the government might make some resolutions more useful than mine, although following coverage of the coalition’s mid-term review it doesn’t look as if they’ve made any commitment to do anything differently. Except, I was amazed to discover, Chris Grayling.
The Justice Secretary confirmed over Christmas (admittedly that means it is not really a new year’s resolution) that the extension of the claims portal to higher-value motor and employer and public liability claims will not now happen in April. This followed the launch of a judicial review into the legality of the move because full evaluation of the existing portal has not yet been completed.
I can almost literally see most of your eyes glazing over. Fear not, you don’t have to know what the portal is to appreciate the significance of this move. What it demonstrates is that Chris Grayling has done something fairly momentous for a politician, never mind a government minister, which is to admit that a policy isn’t going to work out quite as planned.
Yes it did take the threat of legal action to make him see sense, but by admitting the portal would not be ready by 1 April the justice secretary has taken the only practical option. It was pretty obvious to anyone with even the teeniest bit of knowledge about the portal, the reforms to the civil justice regime or even big IT projects that this deadline was never going to be met without creating havoc of one kind or another.
The Law Society, as you would expect, welcomed the decision and called on Grayling to consider delaying other civil justice reforms, including the Legal Aid, Sentencing and Punishment of Offenders Act that is also set to take effect in April. This appears a reasonable suggestion, but may well fall on deaf ears for we now appear to be in a time of unprecedented urgency.
It is no good citing, as the Society president did, the Woolf reforms in 1999, ready for more than a year before they were implemented, or even the reforms in the Legal Services Act 2007, which were chewed over and consulted on for at least four years and have only been fully implemented in the last few months.
No, we live in an age when speed is of the essence, and while this government is by no means the first to want to make things happen as quickly as possible I would argue it is taking the phrase ‘throwing caution to the wind’ more literally than any before it. Using the excuse of a critical financial imperative it has done a pretty good job of imposing its will with little or no risk assessment.
However, I propose a new way forwards for 2013 that I call ‘putting the horse before the cart and shutting the door long before it has bolted’. It does not require agreement with vast swathes of government policy but could at least go some way to preventing a total meltdown.
The government may have delayed extending the portal (this is starting to sound somewhat ‘otherworldly’) but it insists it is full steam ahead with other civil justice reforms. Sounds fair enough, but civil justice is its own little ecosystem and you can’t tinker with one bit and expect the rest to carry on as before.
For example, the bulk of personal injury claims are of relatively small value (many, which the government particularly dislikes, are for whiplash) but they cross-subsidise higher-value and more complex claims. If you raise the small claims limit, as the government proposes to do, you take claimant lawyers out of the equation for the vast majority of claims. ‘Hurrah!’ you might think. What you’ll get is not only a greater likelihood of unfair settlements, but a risk that more complex cases won’t be brought at all.
Bizarrely, rather than looking at all these reforms as a whole entity and taking time to get the balance between them right, the government is introducing them at different times and without waiting to see the effect of one change before bringing in another: the perfect recipe for a dog’s breakfast.
This also applies to other areas of legal reform. Take family law. In three months' time the courts will be deluged by a wave of litigants in person having to represent themselves and we are not talking small numbers: in 2011 there were nearly 54,000 cases where legal aid funded representation before the courts and a further 211,000 where it met the cost of initial advice and assistance.
I am hazarding a guess the courts aren’t ready for this, either in terms of providing even a minimum of support for dazed and confused self-represented litigants or managing the fallout from inevitably longer court cases.
I also don’t imagine mediation services, the government’s alternative for settling family disputes, is ready for such a massive increase, particularly when it’s possible many of these cases aren’t even suitable for mediation. And I am quite sure that individuals are not even aware of the change or how it might affect them.
Or you could take welfare law. Citizens Advice calculates that every £1 spent on advice could save £8.80 further down the line. For example, as outlined by Richard Miller, director of legal aid at the Law Society, someone with a housing benefit problem will no longer be able to get legal aid until they are evicted. As a result instead of a £50 bit of advice early on there is now a £500 case dealing with possession proceedings. Never mind law centres, are local authorities ready for the impact this has?
So Chris Grayling, if you’re reading, please take this opportunity to make a useful new year’s resolution and look before you leap. Thank you.