On Legal Aid

by Joseph Markus

I realise that what I’m about to say has been said innumerable times before. But that isn’t going to stop me saying it again.

It is important to keep the issue alive in the civic consciousness to maintain a constant pressure on the Government to rethink it’s approach. At the time of writing, the Legal Aid, Sentencing and Punishment of Offenders Bill 2010-11 is going through the committee stage in the House of Lords. The first sitting was on 20 December and the next will be on 10 January next year. To put it simply and bluntly, the Bill, and the Government, seeks to eviscerate the existing structure of legal aid provision and to drastically curtail the services available to minorities and the poor.

My brother—who is training to be a doctor—when asked whether he thought the NHS was a good thing replied ‘yes’, that it was. When I asked him why, he said because it is free for everyone. The assumption implicit in his response is that healthcare is something everyone needs to access, and so the fairest method of allowing them to do so is by making it free at the point of access and spreading the real cost-burden proportionally amongst the tax-base. The rationale of healthcare is of making a human life dignified and, so far as possible, enjoyable.

Legal aid should be seen in a broadly similar way; it is arguably the third limb of the welfare state. But the arguments for why cuts to the legal aid budget are necessary have entirely bypassed this facet to it. They simply don’t consider, at any level, the reasons why we have legal aid in the first place. Instead they have been entirely pragmatic: legal aid is argued to be too expensive in the dire economic straits that the country faces.

The NHS is expensive. No one seriously denies that fact. But any cuts to that service have been minimal. This is simple politics—the public perception of the NHS is that it is a good thing—indicating that, perhaps, there is more to the equation than simple pragmatics. The principleof a universal health service, free at the point of access, is something worth paying for. I think that is implicitly recognised by the Government and by the public at large.

The principle behind legal aid is, as the House of Lords Constitution Committee recently highlighted, the idea of universal access to justice. Access to legal justice is expensive and, in a system of courts and tribunals where access is predicated largely on wealth, this means that legal justice is necessarily exclusive justice (never mind the contradiction). Legal aid is a corrective. It originally aimed to provide means-tested legal support—both advice and representation—for those who were unable to afford to access the legal system. Civil legal claims (and claimants), though often perceived to be vexatious or opportunistic, are directed, primarily at least, to allowing those who feel in some sense aggrieved to seek to either rectify their grievance or acquire what they claim to be their right or entitlement. Against this background, the proposed cuts are set to fall almost exclusively and disproportionately on those who are least able to afford them.

That principle has not been so readily assimilated by the public.

There are numerous misunderstandings and misconceptions surrounding, for example, the pay of legal aid lawyers and their self-interested stance in opposing budget cuts. There are also deliberate mischaracterisations of the nature of those applying for, and receiving legal aid. The human rights movement has been similarly blighted by attacks, with the tabloid press, and some politicians, arguing that the Human Rights Act is a ‘criminals’ Charter’.

Additionally, the campaign to protect legal aid has focussed its—admirable—efforts, at least as far as I have been able to tell, largely on certain limited groups in society; at present, the campaign is (rightly) targeting peers in the Lords as the Bill progresses. And, despite the overblown rhetoric of ‘fat cat’ legal aid lawyers, the major constituencies who have been attending events and talks in support of legal aid have been, on the whole, legal practitioners and other activists. A wider audience is obviously required.

In all of this, the purpose of a comprehensive system of legal aid is lost and, gradually, made irrelevant next to economic arguments, at least from the popular perspective.

Perhaps, then, the main role for advocates of a full legal aid system is in shifting the popular perception of legal aid as an expensive burden to it being a good thing, albeit rather expensive. A shift of emphasis has to be the way to create momentum for the campaign.

I think that it has been conclusively established that the legal aid cuts are uneconomic.* The battle now lies in showing that cuts are also unfair, and really this is the basic point. Like with the NHS, advocates, while defeating the weak economic arguments raised by the Government, must at the same time seek to de-centre that mode of thinking. The issue is not so much money as it is the broader principle. The argument will be won, not through reasoning and numbers, but through—to use a cliché—winning hearts as well as minds.

If all the Government is able to understand is pragmatism, then the movement to protect legal aid should be able to speak in similarly pragmatic terms. But it should not concede the ground, and the terms, on which the debate is played out. Other coalition policy initiatives have been defeated, or a rethinking forced, through the strength of public opinion. Key examples are thereversal on the sale of forests, the concessions made by Andrew Lansley concerning health reform, and the more recent promise to revisit the draft planning laws. The practical reality that the legal aid movement should seek to bring to the Government’s attention is the weight of supporting public opinion. If the electorate can be perceived to appreciate the benefits of this service, then the Government might just be willing to listen.

* The Citizens Advice Bureau has created a paper Towards a Business Case for Legal Aid which supports this proposition.

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