Feast, Pat

Hand, James

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The ‘Big Society’ and legal paradoxes 
James Hand  &  Pat Feast 
Associate Senior Lecturer         Senior Lecturer    
School of Law, 
Portsmouth Business School, 
University of Portsmouth, 
Richmond Building, 
Portland Street, 
Portsmouth 
PO1 3DE 
email: James.Hand@port.ac.uk, Pat.Feast@port.ac.uk
The ‘Big Society’ and legal paradoxes 
The core themes of the big society have been summarised as ‘empowering communities, 
redistributing power and promoting a culture of volunteering’ (Kisby, The Big Society: Power 
to the People? The Political Quarterly, Vol. 81, No. 4, 484).  It can be seen to varying extents 
in such policies as neighbourhood planning, ‘free schools’ and reform to the vetting and 
barring system.  As the Prime Minister has noted it ‘isn’t one single policy that is being sort 
of rolled out across the country...[but] a whole stream of things’ in the form of an 
overarching mission (https://www.gov.uk/government/speeches/pms-speech-on-big-
society).  However, the progress of this theme has not been smooth.  As Professor Rodney 
Barker has stated on an LSE Blog: 
‘Is Big Society rhetoric just that, a froth concealing the reality beneath? There are 
clear contradictions between what the Cameron government says it wants, and what 
it does. Voluntary action is valued in the rhetoric, and deprived of funding in 
practice. Choice is applauded in education whilst the ability of 16 year olds to 
exercise that choice is undermined by the abolition of Educational Maintenance 
Grants.’ (http://blogs.lse.ac.uk/politicsandpolicy/big-societies-small-platoons-and-
the-power-of-ideology/) 
Indeed, if we take the ‘Big Society’ to go hand-in-hand with increased volunteerism, 
proposed and actual changes to parts of the legal infrastructure are directly at odds with the 
mission.  This article outlines some of those diminishments to volunteerism. 
Magistracy 
As Alan Lambert noted (in Amicus Curiae Issue 88) ‘[t]he magistracy in England & Wales and 
the UK is unique, as the only lay judges in the world with the power to sentence people to 
prison”.  He further noted the response of a Lord Chief Justice when the future of the lay 
magistracy was raised: ‘where will they find 30,000 volunteers to deal with 95 per cent of all 
cases coming before the court, and what is more, do it for nothing?’  However, the numbers 
of lay magistrates has been falling in recent years.  In 2008, there were, indeed, 29,419 
magistrates in England & Wales (figures from http://www.judiciary.gov.uk/publications/).  In 
the following years, the numbers fell at first very slightly (by 0.5% in 2009 and 2.3 in 2010) 
and then more significantly (by 5%-7% in each of 2011, 2012 and 2013) so that by 2013 the 
figure stood at 23,401; a decline over five years of over 20%.  The number of District Judges 
(Magistrates Courts) (including Deputy DJ(MC)s), the lay magistrates professional 
counterparts, has fallen by only 5% over the same period with the number actually rising in 
2013.   
The widely reported fall in crime in recent years – and the increase in the use of fixed 
penalties – may account for the general fall but not the disproportionate fall in the numbers 
of volunteers.  While the percentage of minority ethnic magistrates and District Judges 
(Magistrates Courts) is about the same at around 8%-10% over the years, there is a 
significant difference in the gender balance: in 2013 women comprised 29% of District 
Judges (Magistrates Courts), 32% of Deputy District Judges (Magistrates Courts) but 52% of 
the volunteer magistracy. 
In a Ministry of Justice commissioned research paper (The strengths and skills of the 
Judiciary in the Magistrates’ Courts Ministry of Justice Research Series 9/11 Revised 2013), it 
was found that only with regard to ‘either-way’ offences was there a statistically significant 
difference between the time that the professionals and the volunteers took to deal with the 
cases.  Not unsurprisingly, the lay bench of three took considerably more time to reach a 
verdict and consider the sentence than the district judges acting alone.  The report shows 
that the professional ‘magistracy’ costs more than the lay magistracy for summary and 
‘sending’ hearings, but suggests that a district judge (magistrates court) can dispense with 
an either-way hearing more cheaply.  However, this is only the case when greater costs are 
levied on the lay bench than on the professional one with regard to the use of premises and 
an amount to reflect volunteer time is included.  The latter is justified on the basis that 
volunteer time is a valuable resource drawn on by the courts and so should be included.   
Employment Tribunal Reform 
While the reduction in the magistracy may or may not be a deliberate attempt to reduce the 
role of the volunteer, the reduction in lay membership of Employment Tribunals was explicit 
government policy and full abolition has been mooted.  Employment Tribunals were 
designed to provide less formal justice and be less legalistic than the courts.  This was 
reflected in their composition: alongside the legally-trained employment judge (formerly 
chair) there would be two ‘wing members’ who would have practical experience of either 
running businesses or representing employees’ interests.  Following a consultation in 2011, 
and contrary to the representations of the majority of the respondents, the government 
decided to allow unfair dismissal cases to be heard by an Employment Judge sitting alone 
(by The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 2012 No. 988) 
as was already the case with, for example, pre-hearing reviews and unlawful deduction 
claims.  The former President of the Employment Tribunals, Judge David Latham, has 
proposed going further and scrapping the non-legal membership of tribunals and replacing 
them with the option to draw on a panel of expert assessors who could advise judges in 
particular cases.   
Although Unfair Dismissal cases historically make up a significant proportion of Employment 
Tribunal cases (there were, for example, 8,700 such cases heard in 2011/2012), the removal 
of the volunteer wing members may have limited effect given the highly restricted room for 
discretion in determining reasonableness in unfair dismissal (as the tribunals are directed 
not to think what they would have done as reasonable people but whether any reasonable 
employer could have dismissed in those circumstances applying a rage of reasonable 
responses test).  The same cannot be said of discrimination claims (which numbered a 
smaller, but still sizeable, 3,449 in 2011/2012).  There the tribunal is instructed to consider 
for themselves, taking account of working practices and business considerations, what is 
reasonable is the case.  The insight of the lay members as an essential component of the 
Employment Appeal Tribunal has also been dispensed with (Enterprise and Regulatory 
Reform Act 2013, s.12). 
House of Lords Reform 
The Coalition Government’s 2011 White Paper and Draft Bill on House of Lords Reform (Cm 
8077) in effect proposed the abolition of a second chamber composed of part-time, as well 
as some near full-time, volunteer members (who receive an allowance) and its replacement 
by a new smaller House of full-time, paid, predominantly professional politicians.  The 
breadth of current and past experience the House of Lords can draw on is one of its 
strengths and the mode of appointment and the nature of its appointees has meant that it 
is not only a much cheaper House to run than the Commons but that it is also a more 
diverse House (not least in terms of sex, race and religion).  As noted in Amicus Curiae, 88 
p.3 ‘In the era of the fostering of the Big Society, it seems somewhat perverse to 
professionalise and severely narrow down a body of highly talented, experienced and cost 
effective volunteers, with members who, while not receiving the honour of a peerage, 
would receive nigh-on £900,000 (at today’s prices) in salary over their likely 15 year term’.  
A House where experts can contribute and retain their previous jobs, rather than be obliged 
to give up outside interests, provides a useful counter-balance to the way the Commons is 
moving (where even very much secondary outside jobs may well be prohibited in the near 
future).  While the proposals in this White Paper were highly criticised and subsequently 
dropped, following a Conservative rebellion and Labour refusing to agree a timetabling 
motion, they remain very much on the horizon. 
Volunteer Advice Services 
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act came into force, 
with an aim to cut civil legal aid budget by £320m within a year.  Before eventually being 
passed by a narrow majority, the bill was defeated fourteen times by the House of Lords.  
The effect of the cuts was to remove legal aid for the majority of cases including some 
housing and benefit cases (those areas exempt from the cuts are some divorces, welfare 
benefits, clinical negligence and child contact; in relation to immigration, only those cases 
involving asylum are eligible). 
According to the report Counting the Cost: Advice Services and the Public Spending 
Reductions (Bill Sargent Trust, September 2013), 60% of local advice providers reported a 
drop in their income between 2011/12 and 2012/13 and 60% expect their income to drop in 
2014/15. During the same period however providers also identified an increase in requests 
for their services and commented that workloads had become more complex and time 
consuming.  The same report identifies that most providers are facing: a decrease in 
resources; an increase in the number of clients; an increase in the time spent with each 
client.  While advice charities strive to do more with less, there can be a counter-intuitive 
effect on volunteers: to quote a Trustee of Bath and North Somerset Citizen’s Advice 
Bureau, volunteers ‘are the backbone of the service and some of them are brilliant but they 
are reliant on staff. If you have fewer staff, you will have fewer volunteers.’ 
(http://www.bathchronicle.co.uk/Petition-Bath-advice-bureau-funding-cuts-tops-1/story-
19965270-detail/story.html#KzPLTVQ3cFHBSbam.99).  This becomes all the more true as 
the complexity of work devolving on advice services increases.  Portsmouth CAB have 
reported that their LSC-funded welfare benefits specialists achieved a 75% success rate in 
cases proceeding to Tribunal, compared with around 38% nationally: ‘the expertise lost in 
this area of law is irreplaceable, as is the support and encouragement those specialists gave 
to our volunteer advisers.’  While the Low Commission advocates a greater use of 
volunteers, there is a need for an infrastructure to be in place and so it calls for greater 
funding as well (The Low Commission, Tackling The Advice Deficit - A strategy for access to 
advice and legal support on social welfare law in England and Wales (January 2014)).  At the 
University of Portsmouth, which pioneered student CAB advice work as an assessed unit and 
subsequently developed wider links, we have seen a reduction in opportunities for 
volunteering in respect of such things as family support, consumer protection and mediation 
as agencies with whom we previously worked have lost funding (although this has been 
mitigated by our ability to extend support available via our own free generalist legal advice 
clinic and other specific clinics).  
Conclusion 
There are many other areas, not least those which are less explicitly law-related, which this 
article has not touched on.  For example, the number of school governors is declining 
through both the process of academisation (which frequently sees a reduction in the size of 
governing bodies) and potentially through the process of reconstitution under the School 
Governance (Constitution) (England) Regulations 2012 which includes the injunction that 
governing bodies should be no bigger than necessary.  In this case, a reduction in vacancies 
is not the only problem as (as is also the case with, for example, serving as local councillors) 
there is a pronounced shortfall of applicants.  While a big society may seek to promote 
volunteering and cuts in funding may appear to open the door to a greater reliance and 
empowerment of volunteers, the legal world can show that either due to policy or the 
depth of cuts this may not be the case on the ground.  Volunteers can be a highly cost-
effective, inclusive and well-rounded source of manpower, but for them to be able to 
contribute there have to be vacancies in the first place and sufficient professional 
infrastructure – which they can both be supported by and support.  Organisations within the 
voluntary sector who have a wealth of experience in dealing not only with individual issues 
but interacting with other agencies and with sharing information across a range of subjects 
need to be fully  supported by secure funding or a ‘Big Society’ will remain largely a dream 
with small pockets of excellence.  


The “Big Society” and legal paradoxes

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