Although the fundamental injustice of poverty cannot be remedied by lawyers alone, legal aid is crucial to a fair and effective justice system. No government that makes it harder for the poor to navigate through the justice system can claim poverty reduction as a priority, says Kate Donald
Improving access to courts, lawyers, legal information for the poor and marginalized is not just in the interests of ‘justice’ in the abstract, but is fundamental for tackling poverty. This is the core message of the recent report by the Special Rapporteur on extreme poverty and human rights to the United Nations General Assembly. Across developed and developing countries, the report emphasizes, people living in poverty are prevented from accessing justice on an equal footing, thereby entrenching and exacerbating their deprivation.
It is a powerful way to envisage effective access to justice policies; not just as a right but also as a tool for reducing poverty and inequality and fostering social inclusion. In this conception, legal aid is not just a technical matter for a Ministry of Justice, but a matter of broader socio-economic justice. No government that makes it harder for the poor to navigate through the justice system can claim poverty reduction as a priority – at least not with a straight face.
Too often, the public and policy-makers alike think of poverty as simply a lack of income. In reality, it is a multidimensional phenomenon encompassing a chronic lack of resources, capabilities, choices, security and power, all building on each other in a feedback loop of disadvantage. Therefore, eradicating extreme poverty requires tackling all these aspects, as well as improving access to basic goods such as housing, food, education, health services and water and sanitation. Access to justice plays a crucial role in all parts of this equation, as a fundamental human right in itself and also an essential tool for the protection and promotion of all other civil, cultural, economic political and social rights. If people living in poverty do not have access to a remedy when their rights have been violated, or cannot proactively claim their rights and entitlements, then their exclusion, powerlessness and deprivation become entrenched.
The vicious circle of poverty and injustice
People living in poverty are exceptionally vulnerable to crime, abuse and exploitation. If they do not have the ability to take real and effective recourse against these actions, then impunity and inequality is perpetuated, and their vulnerability is exacerbated. Accountability becomes a sham. Their increased vulnerability and exclusion further hampers their ability to pursue justice; ad infinitum, spiralling down the generations.
Poverty will only be defeated when the law works for everyone. Access to justice is crucial for tackling the root causes of poverty, exclusion and vulnerability. Effective and accessible justice systems can be tools to develop progressive jurisprudence on economic and social rights - mandating provision of affordable housing, enforcing the human rights of people living in poverty,or by remedying their exploitation by powerful public or private actors.
Access to justice is also
an important lever for gender equality. Women are more likely to be poor, both worldwide
and in the UK,
but women also face extra
burdens or obstacles in accessing justice mechanisms. Gender-based crimes and
abuses are often not well legislated for or effectively dealt with; public stigma and prejudice
also play a part in silencing abused women and preventing them from seeking
justice. Obstructed access to justice thus feeds the
cycle of gendered poverty and violence, and perpetuates impunity for
Obstacles to accessing justice
It is clear that the sustained deprivations endemic to poverty translate into lower levels of legal literacy and awareness of rights. Often, the battles of the poor remain unfought because of the huge chasm in wealth, social capital and political power between themselves and their ‘opponents’: those who should be accountable to them, whose actions (or lack thereof) threaten their rights, bodily integrity or livelihoods. A landlord, an employer, a local authority official; a bank that mis-sold them a high-interest loan; a government that has removed their disability benefit with one sweep of the pen. To challenge these powerful figures requires resources (time, money, information) that are often lacking.
Legal aid is designed to compensate for these vast gulfs in power and money. However, in nearly every country on earth the provision of legal advice and representation is grossly insufficient. In parts of Africa the situation is dire. In 2011 Sierra Leone had only three lawyers available through its legal aid programme; Malawi had eighteen. In the United States one legal aid attorney is available for every 6,861 persons (while in contrast there is one private attorney for every 525 people). The Legal Aid Society, the largest provider of legal services in the United States, estimates that it turns down eight out of every nine people who request advice and assistance in civil legal matters.
Austerity and legal aid
In many countries, the number of applications for civil legal aid has risen, while resources allocated to legal aid have decreased as a result of austerity measures. In Ireland, the number of applications for civil legal aid rose by 84 per cent from 2007 to 2011 for non-asylum related matters, while resources allocated to legal aid have decreased. In the U.K., the Legal Aid Sentencing and Prevention of Offenders Act 2012 (‘LASPO’) will reduce government spending on legal aid by a quarter over three years. As Roger Smith lamented in the JUSTICE annual lecture, this will deal a death blow to a system that has hereto “operated on the premise that the poor were entitled to, and would progressively receive, legal services available to the rich.”
There is no doubting the drastic nature of these cuts, and the serious and detrimental impact they will have on equality and access to justice in the UK. The Ministry of Justice estimates that half a million potential clients will lose out, 90% of whom will lose entitlement altogether. It is the already-poor and disadvantaged that will suffer most. The cuts overwhelmingly affect family and social welfare law; the Ministry accepts that it will therefore have a disproportionate impact on women, on black and minority ethnic clients; and on persons with disabilities. Without equal and meaningful access to legal advice and representation, there is one justice for the rich and another for the poor. The playing field of course is already skewed. These cuts will upend it on to a far steeper gradient.
Many of the exclusions to legal aid (new and pre-existing) explicitly discriminate against the poor. What other demographic so regularly and badly needs to seek justice through housing and immigration proceedings, or welfare appeal boards? People in Ireland seeking review of social welfare decisions through the quasi-judicial Social Welfare Appeals Office cannot access representation through the civil legal aid scheme, leaving them to navigate a “bureaucratic and legal labyrinth” of complex rules and technicalities alone. In the UK, representation before welfare appeals was never covered by legal aid, but now LASPO means that no free legal advice will be available for the often desperate and frequently disabled people seeking welfare benefit reviews and appeals before first tier tribunals.
Under international human rights law, the British government has an obligation to ensure that the poor can enjoy the rights to an effective remedy, equality before the courts and a fair trial in practice, not just in theory or in law. The opportunity for, and benefits of, justice should be available to all. Today this is clearly not the case. Those who need legal advice and assistance should be entitled to it as a right, not a matter of charity. Although the fundamental injustice of poverty cannot be remedied by lawyers alone, legal aid is crucial to a fair and effective justice system and therefore to reducing poverty.
Slashing legal aid budgets in a time of recession is heaping misery on misery on the same victims, entrenching the two-tier nature of the justice system and blocking the efforts of many people living in poverty to seek remedy and fairness and a better life. ‘Justice’ does not exist in a silo; as the American civil rights lawyer Bryan Stevenson memorably claims in his now-viral TED talk, “the opposite of poverty is not wealth…in too many places, the opposite of poverty is justice.” Unfortunately, the UK is fast becoming one of those places.