In a strongly worded three-page letter to the Chief Minister, leaked to the JEP, the president of the Law Society of Jersey described the current system of legal aid as ‘broken’, warning that it would stop funding its administration from the end of this year unless proposed changes went ahead.
The society is particularly dissatisfied that law firms, and not the government, fund the system, which provides free or discounted legal advice for lower-income Islanders.
Advocate John Kelleher wrote to Senator John Le Fondré stating: ‘As a consequence of the stance taken by your government, I must advise you that if the revised draft law is passed, the Law Society will bring proceedings for declaration that the scheme is unlawful and in particular that it is capable of breaching the European Convention on Human Rights.’
He warned that, after five years of negotiations, matters had ‘reached an impasse’, adding: ‘We were prepared – and are still prepared – to continue to support access to justice but we cannot do so on our own and will not do so when it results in manifest unfairness to our members.’
In Jersey, unlike many jurisdictions where costs are covered by government, legal aid is provided by the legal profession at their own expense or at discounted rates. It is carried out on a rota basis by advocates who have qualified within the last 15 years. The government’s reforms would put legal aid on a statutory basis enshrined in legislation, but would not change how it is funded.
Earlier this year the JEP revealed that the Law Society circulated an email to its members to discuss what steps it would take, including potential strike or work-to-rule action, because of dissatisfaction with how the legal aid reforms were progressing.
The society also specifically criticised a call from the Bailiff, Sir William Bailhache, to lower the eligibility threshold for legal aid, so that a greater number of lower-income Islanders would have access to free or discounted legal advice.
Advocate Kelleher’s letter says: ‘The current legal-aid system is broken; it is unsustainable and not fit for purpose. While the legal profession remains committed to maintaining the safety net of legal representation for the most vulnerable members of our community who might otherwise be deprived of access to justice, it is important to recognise that responsibility for such provisions rests with government and not the legal profession.’
At last week’s States sitting Deputy Steve Luce asked why no public meetings had been held by the Scrutiny panel set up in July to review the legal-aid proposals.
Deputy Steve Ahier, from the panel, said it had become apparent there was widespread disquiet, so the Chief Minister had gone away to redraft his proposals, which were due to be relodged with the States next month so they could be debated in January.
When asked by Deputy Luce whether he had received correspondence from the Law Society, he said that, while he had not received any, he would publish it if he did.
Commenting on the matter, the Chief Minister said that the Access to Justice law had been updated following consultation with the judiciary, Scrutiny and ministers, and the Law Society had updated on changes that had been made.
‘I have been carefully considering the contents of the letter received from the president of the Law Society which provided details of the outcome of the EGM held on 25 October,’ he said.
‘I always take any communication from the Law Society seriously. This is a complex subject and I want to ensure that we have the appropriate arrangements in place to provide a scheme that is in the best interests of Islanders, whose welfare I will continue to pursue and put first.
‘I will be responding to the Law Society in due course and expect to be able to arrive at a position that will allow the draft law to be lodged without a need for the Law Society to take the action they have outlined.’
