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Repeal s.12-19 of the Legal Services Act 2007

Comment 13th July 2010

Repeal sections 12 to 19 and Schedule 3 of the Legal Services Act 2007. These sections preclude anyone other than a solicitor or an exempt individual from offering legal advice or acting as an advocate in court.

It should be up to the individual where and from whom they seek advice and assistance. If they have limited funds which prevent them from affording the services of a solicitor, they should then have access to lay advice without the need for the judiciary's permission. It should be the right of the individual to access legal advice from wherever they so choose,  and there should be no barriers to access to justice.

The principle of lay advice is well accepted, if, bizarrely, illegal if the lay advisor is not employed by a solicitor. As recently reported on Radio 4, in a Magistrates court, there are instances where the only person with legal qualifications in court is the clerk.

In Family Law, in July 2010, the President of the Family Courts issued new guidance which, at paragraph 27, acknowledges that lay advisors may be paid for 'the provision of legal advice in connection with court proceedings'. Charities which provide legal advice services, but from lay advisors, to paying members, may technically be found to be breaking the law.

 




There should be no restriction to a lay advisor acting as an advocate (speaking for their client in court). Where one party is represented and the other is not, such restrictions may impinge on the party's convention right to a fair trial, and fails to afford an equality in arms. Nerves, anxiety, stress, a lack of familiarity with the court environment and learning difficulties such as dyslexia put the litigant in person at a significant disadvantage when compared to a represented party. The Official Solicitor, who might assist those most severely disadvantaged by disability was recently reported to be unable to take on more cases at this time.

The right to have a lay advisor speak on your behalf in court is currently subject to judicial discretion. This right should be unfettered, enshrined in statute, and made available to all.

Why does this matter?

 

In England and Wales, the legal aid budget runs at £2billion per annum, the highest per capita in the world. Less than a third of the population qualify for legal aid, yet the cost of solicitor advice is beyond the financial means of many. Lay advisors, some of whom charge (but typically a greatly reduced hourly rate in comparison), provide an essential service to the ever growing number of litigants in person in the civil and family courts. Their involvement often assists the courts who would otherwise be faced with a bewildered, uninformed and unassisted litigant in person.

In an ideal world, there would be sufficient funding available to provide free legal assistance for all from qualified solicitors, but this is beyond the financial means of the country at this time, and for the foreseeable future. The likelihood is a further restriction in legal aid.

It should be the right of the individual to freely choose where they seek advice, and from whom. Lay advisors run the risk of imprisonment by providing an essential service. The litigant in person runs the risk of contempt of court when asking advice, prior to the court accepting the advisor as a McKenzie Friend in proceedings. The seeking and provision of advice should not carry a risk of jail in a civilised society.

There should be no barriers to the individual having access to information and assistance which informs them of their legal rights. Nor should access to legal advice be dependent on one's financial means. The state should not dictate where one goes for advice.

For the nervous, anxious or otherwise verbally impaired, or for the less articulate, there should be no disadvantage when faced by an opposing party with an advocate to speak on their behalf. The state should remove whatever barriers exist to there being an equality in arms.

Repeal of sections 12-19 and Schedule 3 of the Legal Services Act 2007 would resolve the paradoxical situation of the courts providing official guidance to paid lay advisors where the services they offer can be construed as a criminal offence in statute.

The repeal of this legislation is recognition of a growing societal need and addresses the conflict between existing judicial guidance and statute.

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