On Tuesday there was a march through the streets of Manchester which closed the main roads through the city centre at rush hour. Yesterday there was a demo in Parliament Square with speakers including Gerry Conlon of the Guildford Four and the family of Jean Charles de Menezes. Both were protests against the changes proposed in the current government consultation “Transforming Legal Aid – Delivering a more credible and efficient system” and both saw groups of lawyers in suits waving placards and banners. If you are thinking “so what?”, please read on, because these changes are not just, or even primarily, about lawyers. If implemented, they will fundamentally damage access to justice and the rule of law in this country.
Instead of falling for the cliches about criminals, scroungers or fat cat lawyers sponging off the state, it is worth remembering the origins of legal aid. It was introduced post-war, in 1949, as one of the revolutionary set of welfare reforms aimed at achieving social justice. Higher education, healthcare provision, social welfare: all of these things allowed huge swathes of the population to participate in society as never before. Similarly, as a result of the introduction of legal aid, those without means had access to justice for a whole range of civil disputes which they would never have been able to litigate before, however strong their case. Moreover, defendants in criminal cases, faced with prosecution by the state, were afforded proper representation to challenge the case against them. For the first time there was equality of arms for all, not just those who could pay.
Successive governments have chipped away at this system as the legal aid bill got bigger. Most recently, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 made huge inroads into civil legal aid, restricting access to justice for many people, including the most vulnerable. And then last month the Ministry of Justice launched “Transforming Legal Aid”, a consultation paper proposing more cuts to civil legal aid and an outright attack on the criminal justice system.
The headlines have understandably been captured by the proposals for criminal legal aid. The government wants to abolish the existing system in favour of price competitive tendering at further reduced rates, with little if any regard to quality. It is expected that three quarters of the existing providers will go out of business. In short, what the proposals will mean for those accused of criminal offences is that their right to choose a lawyer to represent them will be removed. They will not be able to choose a lawyer with specialist experience; instead they will be allocated a representative from one of the few providers who remain, which could well include the likes of Tesco, Serco and Stobarts. Except, of course, if they have the money to pay. Once again, there will be a two tier system, with specialist lawyers for the rich and a stretched skeleton service devoid of choice for the poor. The inevitable result will be more miscarriages of justice and more innocent people with criminal convictions.
The proposals for civil legal aid also deserve serious attention. The residence test would deny legal aid to a whole range of people who have not been resident in the UK for 12 months, including trafficked persons, separated children, victims of domestic violence and detainees. It would have included the family of Jean Charles de Menezes. The changes to judicial review would affect the most vulnerable, including people who are homeless as a result of a local authority’s refusal to provide them with interim accommodation. Judicial review claims are civil claims, often in urgent cases, which challenge unlawful actions or decision making by public bodies, including local authorities. They start by way of an application to a judge for permission to proceed with a claim. The government proposes that legal aid lawyers should not be paid for their work on applications which do not go on to receive permission from a judge. Yet the proposal takes no account of the fact that many such applications never reach a judge because the public body concedes or the claim is resolved in a way which is beneficial to the individual. Although they could seek their costs from the public body or from the court, there is no guarantee that the claimant’s lawyers would receive any payment in such circumstances. The proposals would force overstretched legal aid lawyers to decide whether it is sustainable for their firm to do this type of work at risk of not getting paid. If providers don’t take the risk or go out of business vulnerable people would be left on the streets as a direct result of unlawful decision making which they have no means of challenging.
The government has justified its proposals by saying that public confidence in legal aid has been shaken and must be restored. Yet there is not a shred of evidence in the consultation paper to support this assertion. The only thing MOJ representatives have found to say when questioned at the consultation roadshows is that ministers have received “letters and emails of complaint”. There is no indication of how many letters or what they say. None have been published. Even if there have been letters, surely a glance at Tripadvisor is sufficient to tell us that no matter what level of service you provide, some will complain. On Tuesday the results of a ComRes poll commissioned by the Bar Council, and widely reported in the mainstream media, revealed just how misleading the consultation paper really is: 71% of the British public are concerned that cuts to legal aid could lead to innocent people being convicted of crimes they did not commit; two-thirds (67%) agree that legal aid is a price worth paying for living in a fair society; 75% say that it is the poor who will be hit hardest by the proposed changes.
The reality is that this government is using you, the public, as an excuse to inflict irreparable damage on the justice system. You should care about these cuts because they are unjust, ill thought out and dangerous. You should care because they will seriously undermine access to justice and government accountability. You should care out of pure self-interest, because you, like any other member of the public, are at risk, however small, of criminal prosecution and destitution.