Chair's National Pro Bono Week blog: The Citizen and the State

9 November 2017

The Citizen and the State

Poor decision-making and the role of the pro bono Bar

An immigrant wrongfully imprisoned in a removal centre; a disabled citizen denied entitlement to a Personal Independence Payment; an erroneous HMRC demand for tax which is not due; and a Local Authority's wrongful refusal to recognise a child's special educational needs; each of these four scenarios is neither fanciful nor uncommon. Each pitches the citizen against the state, and the outcome for the citizen, if a wrongful decision is not put right, can be dramatic - life-changing, not only for them but also for those who depend upon or care for them.  

These are just four spheres of life affecting a large number of vulnerable citizens and their families in modern Britain. There are of course many other areas of state regulation that affect our daily lives.

For each, our system of justice provides that there are first-tier tribunals, with an appellate structure thereafter, that determine the outcome of appeals should the citizen have the wit, stamina and resources to pursue the matter. The conspicuously high success rate of tribunal appeals from wrongful decisions by the state shows that an alarming number of those decisions - which can be life-altering for many citizens - are wrong. For example, something like 60% of appeals in relation to PIPs and 50% of bail applications on behalf of detained immigrants are successful.  These figures alone are disturbing, but they speak nothing of the intense interim trauma citizens often suffer.

No-one should underestimate the experience of being the victim of an unfair or wrong decision by the state which has the capacity to change your life forever. It is doubly alarming because many in that position will not appeal to a tribunal because they lack the support, encouragement, energy, emotional and financial resources to manage the process alone. A third cause for concern is that unsupported and unrepresented as those who persevere to tribunals normally are, it is inevitable that some appeals will be dismissed which ought to have been allowed, and would have been allowed had the citizen the benefit of a lawyer advising them or at their side to help locate and present a winning argument. 

Most of the time a lawyer does not feature in the equation. That is one of the inevitable consequences of the contraction of legal aid. In 2006 our government spent £2.4bn on legal aid. By 2016, the sum had contracted to £1.6 bn.   

Of course the problem of poor-decision making by the state is inevitably exacerbated if those making the initial decision do not expect a high degree of scrutiny or challenge. At best it leads to carelessness. At worst it encourages a tendency or even a policy, official or otherwise, to inflict adverse decisions on the basis that a high proportion will stick, whatever their merits.

Charities working in the field provide some help. There are a number of them, and the work they do is deserving of nothing but our thanks. Is charity the way forward? Or did the post-war generation understand that charity is not the answer to the needs of our citizens? And as a matter of principle is it acceptable that charity is charged with rescuing those who are victims of wrong decision-making by the state?  Charity workers challenging these decisions will tell you with one voice that limitations on resources dictate that they are helping only a fraction of those who need help.

The other form of help is from lawyers who know something about the fields of law in question. In the four fields of law relating to the examples given, there are experts in immigration, social security, revenue and education. Some are paid privately by the few who can afford it. Others work for free, pro bono. But if you ask the first-tier tribunal judges, they will tell you that very many who come before them are unrepresented and have had no advice at any stage form a lawyer. The judges are not pleased about that. It makes their work harder. It makes the cases take longer and it makes it less likely that the right outcome will be achieved. And those who represent the state at tribunal hearings are not put to the test and become sloppy and take shortcuts.

A large number of barristers work pro bono in these tribunals doing these cases. Some will advise and act not only at the first-tier tribunal but also where necessary on appeal to the higher courts. Many barristers do this on their own, but there are a number of schemes which coordinate the effort and they try to link such barristers to such cases.

Much of this is unsung work by the Bar, but it is vital in relieving the plight of the lucky minority who receive it.  I have met some such citizens who have told me their stories and how a blight in their lives was eventually lifted thanks to the efforts of barristers working for nothing.    

But this form of charity will not solve the growing problem of unrepresented citizens who are the victims of poor decisions. Few of these cases attract headlines in the way a sensational criminal case might do, although the human story behind many of them is pitiful enough.

I cannot help but feel that society is neglecting this problem at its peril. Quite apart from the moral imperative to put right what has gone wrong, every disaffected citizen, the victim of an uncorrected wrong perpetrated by the state, represents a failure of the rule of law.

The Bar Council considers that we have a duty to shine a light at this problem. Two days ago, as part of the events organised for Pro Bono week, we bought together the Senior President of Tribunals, Sir Ernest Ryder who gave a candid account of the extent of the problem and Sir Henry Brooke CMG, who gave us this moving address about those apply for PIPs. We also heard from two silks; one who worked from time-to-time pro bono at the Revenue Bar in the Tax Chamber, and another who worked trying to rectify inadequate decisions made by Local Authorities in relation to Special Needs provision for young people. 

The commonality of problems in each sector under-discussion was striking. It is disappointing that we have somehow come to tolerate a state of affairs where poor decisions made by the State cannot easily by rectified by citizens who lack the means. This large corner of the delivery of justice in our society is patently suffering from neglect.

What ought we to do?   

Although it can never provide a complete solution, no doubt advances in technology will have a part to play in providing some wronged citizens with better support.  A combination of this together with an intelligent redeployment of legal aid targeted to the most vulnerable will result in better scrutiny of the poor quality of initial decision-making.  There are, in other words, ways of rectifying the growing problem. What we currently lack is sufficient political will. The Bar Council is working to open this topic up for public discussion, in the public interest.