Rule of law at risk

Geoffrey Bindman
14 August 2008

Geoffrey Bindman (London, BIHR): The interesting OurKingdom debate on Labour After Brown risks becoming too remote from actual policy needs as it discusses general strategy. Of course, government needs to be fairer and extend justice in a way that supports individuals while building shared values. If this is what David Miliband and Sunder Katwala mean by combining social democracy with liberalism, who could disagree? Except that it runs the danger of phrase-making. What I am looking for is a much more principled approach to endorsing the need for public values that explicitly face down the marketisation of government that has been the tragic hallmark of New Labour. After a lifetime of support, I have witnessed this process at first hand, as the legacy of 1945 is systematically undone. What is happening is wrong. We need the new generation to identify that it is wrong and pledge to reverse it.

There cannot be democracy, let alone social democracy, without the rule of law. The rule of law is meaningful only if there is equal access to the courts. Justice demands a level playing field. That is only possible if everyone has equal access to legal advice and representation. That means legal aid – public funding to provide necessary help for those who cannot afford the cost of legal services.

The Legal Aid and Advice Act 1949 was a striking achievement of the post-war Labour government, parallel to the National Health Service and just as remarkable. It put those too poor to pay lawyers on a par with those who could. By so doing it made everyone more equal before the law. It did so by using legal aid to pay fees out of public funds. As a monopoly funder the government could keep rates to a minimum and did so.

Now, however, the drive to cut costs has undermined the effectiveness of legal aid. It has restricted its scope to the extremely poor –  those eligible for welfare benefits and a small number of others. It has excluded many lawyers from offering their services  by making legal aid practice no longer economically viable. 

Yet at the same time the need for legal advice and help has grown directly as a result of government policies. As more and more legislation pours out of Westminster and Whitehall so the demand for interpretation and explanation extends among the population. Public authorities and private corporations have ready access to legal advice. They are expanding the resources they employ on them, as can be seen by the growth in the income and profits of the law firms which represent them. But this greatly increases the needs of ordinary citizens, with regular jobs that now exclude them from legal aid, to have to defend themselves, challenge actions and interpretations, and pursue reasonable claims.

Citizens can no longer afford to pay for vital  professional help and advice. The government has failed to provide the resources to enable these needs to be met.  Instead, it has tried to find ways of trimming the legal aid budget. Following a standard  New Labour technique, it appointed a business man to solve the problem. Lord Carter of Coles must have seemed the ideal candidate for the job. He had run a highly profitable private health care company. And, since 2004, he has been a Labour working peer with a loyal voting record: the latest figures reveal that of several hundred votes he has cast in the Lords, only one was against the Government. He is a close friend of Jack Straw, having been best man at both his weddings.

Lord Carter published his report, “Legal Aid: A Market Based Approach”  in July 2006. The title neatly summarises his perspective and its fundamental fallacy: that providing legal services is on a par with selling soap powder or paper clips. This approach supposes that people only need and expect from lawyers mechanical answers to factual questions – as if the lawyer was a kind of “speak your weight” machine. Carter’s money saving solution is twofold. Fixed fees per case, regardless of complexity; coupled with “best value tendering” - competitive tendering to bring down those fees to the lowest possible level.

The result he expects, and seeks, is to concentrate legal aid in a few large factory law firms churning out computerised advice and case preparation in standardised chunks. As Carter puts it, in the management speak he favours, “procurement driven restructuring is likely to see an increase in the average size of firms through growth and mergers.” They would replace the range of small firms, conveniently spread throughout the country, which would be priced out of the market. Already, many of the most experienced legal aid solicitors have been forced out, because current rates are too low – often a tenth of the rates charged by City firms to their corporate clients.

Lord Carter’s proposals have been roundly condemned not only by the legal profession but by a number of independent bodies which represent the interests of the most deprived in the community, including the Constitutional Affairs Committee of the House of Commons.

Carter has a track record of really bad ideas. He is the advocate of the “Titan” prison – another mindless example of “bigger is better” -  and of the proposed reform of sentencing policy, based on a discredited US model and condemned by an expert working party chaired by Lord Justice Gage as inflexible and unsuitable.

But what is happening with legal aid is much worse than a misconceived initiative. For all the talk about empowering the individual and expanding choice, the fundamental obligation of progressive government is to assist the weak, when their case is just, against the strong. No one disputes that legal aid must be managed efficiently and economically but the Government has pursued economy at the expense of justice. Its priorities must be reversed. 

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