LAW: a critical analysis of the English legal system Part 2
Some lawyers who have made a reasonable living from the practice of English law have not embraced the legal system as a saviour or a benefactor. They have always been critical. They aim to continue to be critical. They will not forget the circumstances in which their families struggled to survive and the role of English law in the preservation of a social and economic system which condemned their parents and grandparents to lives of unceasing toil and hardship.
Some lawyers do not love the law. They do not find it particularly fascinating. They do not like putting on fancy dress or enjoying the sound of their own voices.They do feel passionate about the denial of justice to the poor.
These lawyers do not find themselves under any obligation to put forward positive suggestions for the reform of the system other than to call for a national network of properly-funded Law Centres. Those who did not create the English legal system have no responsibility for its rescue.
Law reformers are thick on the ground in England, beavering away for years in committees which produce vast reports which are then often forgotten, or sweating over their chances of academic promotion by producing books and articles advocating the reform of specific areas of law.
When law reform is carried through, more often than not it creates more complexities and obscurities than it resolves. The conditional fee system, for example, imported from America despite decades of principled opposition from those who reacted with revulsion against ambulance chasing, sounds deceptively simple. Some claimants have an almost childlike faith in “no win no fee”, which on the face of it is a clear concept. The reality is different.
The conditional fee system is overlaid with a mass of detail related to insurance. Insurance companies have profited massively since the evisceration of legal aid.
The system of conditional and/or contingency fees is so complex that it has become a new area of specialism. It may soon be a specialist subject in its own right, on law degree syllabuses. Non-experts have very little chance of understanding, let alone explaining, its bewildering complexities. There is plenty of money to be made from specialising in conditional fee law without ever taking on a no win no fee client.The reality is that lawyers will not generally take on no win no fee cases unless they are virtually unloseable.
Another example of a failed reform was the introduction of the employment dispute regulations. This reform was money-based with the overall intention of cutting down the number of employment tribunal claims. The new regulations were generally accepted to be disastrous and have now been repealed. This is fully discussed in Chapter 6 (Mystery).
The key point to be made in summarising the current state of the English legal system is that poor people can’t afford justice.