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Banned aid: the government's cure for a broken society

The Coalition's proposed reforms of the legal system threaten to deny justice to the vulnerable. Yet the drastic cuts to legal aid are not being proposed as an austerity measure, but as a means to increase fairness in society.
Yasmine Seale
30 December 2010

The Magna Carta, that 800-year old cornerstone of English liberty, pledges that “to no one will we sell, to no one deny or delay right or justice.” Yet the government's proposed reform of the legal system threatens to do just that. In a breathtaking tour de force of two-facedness, Lord Chancellor Kenneth Clarke recently led a procession at Runnymede Meadow, where the charter was signed, celebrating its commitment to human freedoms, only days before announcing the most draconian cuts to legal aid in its 60-year history.

Launched after the war as a fifth arm of the welfare state, the legal aid system provides funding for legal representation to those who otherwise could not afford it. Due to a long-standing agenda on the part of both Labour and the Conservatives to curtail it, recent years have seen a gradual erosion of legal aid. In 2008, Geoffrey Bindman raised the alarm in an article in OurKingdom on the marketisation of legal aid and its restriction to the extremely poor. But the latest proposals far exceed any blow Labour ever dealt to it, and make cuts under Thatcher seem demure in comparison. The plan is to cut the legal aid budget, which they claim to be one of the most expensive in the world at £2bn a year, by £350m per annum. The package of reforms proposed by the Ministry of Justice is estimated to lead to a drop-off of 547,000 civil cases annually. The Law Society has said that the proposals represent “a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law”.

Proportionately speaking, these measures are far more drastic than those being meted out to any other public service. But while other cuts are being justified as austerity measures, in other words a necessary evil, it looks like the proposed shrinkage of the justice system is here to stay. It is no temporary expedient, that could be dispensed with when prospects start to look up: on the contrary, the consultation issued by the government on the subject calls for profound, structural reforms to the legal establishment. It even proposes to do away with the entire ‘culture of litigation’ which in its view has encouraged lazy recourse to the law when people should really be seeking alternative solutions to their problems. In other words, the proposed cuts are not some stopgap, apologetically introduced to help us through these distressed times: the government actually believes they will improve the legal system, and thence make this society a fairer place.

If the plan goes through, whole areas of civil law, such as education, housing, immigration, social welfare and employment, will simply be removed from the scope of public funding, thus leaving more than half a million people, who currently have access to the scheme, with no legal advice or representation whatsoever. Legal counsel on social welfare is a particularly bad casualty, as those who need it are suffering from cuts elsewhere, and their numbers are likely to be on the rise.

True, the consultation makes exceptions for some of the more extreme cases, “where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home". Though family law will be scrapped from the remit of legal aid, individual cases of forced marriage or domestic violence will still be considered eligible for funding. But the decision of which cases to consider and which to leave out in the cold can seem arbitrary, and even, at times, morally questionable. Take housing, for instance. As an area of law, it too is a casualty of the cuts, and although exceptions will be made for people facing homelessness or anti-social behaviour, other problems, like re-housing or applications for a new tenancy, will no longer get state help. The government itself has admitted that these problems are more likely to afflict people who are ill or disabled, yet it is quite happy to scrap free advice to them all the same.

In the same way, education law will no longer be funded because, according to the consultation, it is of “relatively low importance”, and some issues like exclusion “arise from personal choices, e.g. conduct at school”. The justice minister, Jonathan Djanogly, added more generally that “people are too often willing to hand over their personal problems to the state". What is being missed, of course, is that exclusion is often linked to wider social issues that are not just a matter of “personal choice”. What is more, a vast proportion of those who are excluded have special needs or are disabled. To quote but one case, the National Autistic Society says that one in five children with autism has been excluded from school, and that 67 per cent of these have been excluded more than once. The Ministry should be ashamed of itself for suggesting that these exclusions are somehow the parents’ fault, or worse, are brought about by the children themselves.

The minister also said that our ‘culture of litigation’ was to blame for inflated legal costs, and  encouraged people to settle their disputes outside the courtroom, to find simpler and more informal solutions to their problems, to view the court as a last recourse rather than a first resort. But his portrayal of those who resort to legal aid as benefit-scrounging opportunists seems to take for granted these people's capacity to put a case across articulately. Any volunteer at the Citizens Advice Bureau will tell you that their most disadvantaged clients, many of whom have debilitating physical or mental conditions, are precisely the people least able to represent themselves in a coherent or convincing manner.

The Ministry of Justice makes repeated mention of the fact that our legal aid system is one of the most expensive in the world, at around £2bn a year. But this assumption, often invoked to justify deep cuts to the budget, needs unpacking. It is based on a study commissioned from the University of York by the government. Though it is meant to be an international comparison, Britain’s case is only contrasted to a handful of others, which were not chosen by the researchers but by the MoJ itself. The choice of comparators, moreover, is never explained, which is, to say the least, methodologically spurious in the context of an academic inquiry. Interestingly (and this point is generally overlooked), the study concludes that although legal aid costs are higher here than in most other countries, the overall costs of the justice system are comparatively low, apparently supporting the oft-made point that cuts to legal aid will lead to a contraction of justice. As Adam Wagner has put it, “the system may not be robust enough to provide justice for those frozen out by the proposed legal aid reforms".

Indeed, Edward Fitzgerald QC has pointed out that the danger of a starved system is that defendants will be bullied into pleading guilty to cut down on costs, as sometimes happens in the United States. The cuts also aggravate the risk of miscarriages of justice, as more people will not have their side of the story properly heard.

Of course, it was unavoidable that in the current climate, public funding for legal aid would fall under the axe. Even the shadow justice minister, Sadiq Khan, had to admit that were Labour in power today, they too would be announcing cuts to the legal aid budget. But cutting the fat from the system is one thing – dealing a fundamental blow to the average person’s right to justice is quite another. The government could have sought more effective ways of making savings without tilting the imbalance further against the more vulnerable members of society. They could, for instance, have cut down on fraud trials, which incur massive costs and are a far greater waste of the taxpayer’s money than legal aid, which ensures access to the rule of law for all.

Naturally, the legal profession has united against the cuts – arguing that they will limit access to justice for society’s most vulnerable groups – but it seems that this feeling is also shared by the general public. A recent survey found that 80 per cent of Britons, even if they were unlikely to use legal aid services themselves, felt that it was fair that the state should fund them.

In short, “a permanent contraction of justice cannot be justified by the ‘big society’ or by any sort of philosophical mantra”, as Nicholas Green QC puts it. The government's calls for ‘a simpler justice system’ are all very well, but not if this means a system in which justice is a commodity, or worse, a luxury, there to be bought and sold by a privileged few. We have to strive for a system in which everyone, no matter how poor, disadvantaged or incoherent they are, should have the best quality of service provided for them. Social justice remains a true test of a civilised society – but that bedrock will be threatened if its most vulnerable citizens can’t get access to justice in the first place.

This was originally published in issue 3 of the Oxford Left Review and is republished with thanks.

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