by Sarah Walker
The UK government and their sympathetic media would have you believe that current legal aid provisions allow unpopular members of our society to greedily grab what they can get, much like an unsupervised child at a pick ‘n’ mix. The truth is that this government is systematically dismantling a safeguard of access to justice that is essential if we are to ensure that the rights of vulnerable members of society are protected.
Times are hard: we are in a recession and cuts have to be made. This much we know (or have been told by the government, depending upon your economic view point). The government, in view of the above, plans to cut £350m from the £2bn legal aid budget. As someone who has trained as a barrister, hoping to practice in areas affected by the cuts, I suspect I could be accused of NIMBYism (“not in my back yard”). What my accusers need to realise is that these are cuts to everyone’s back yards.
Legal disputes are expensive for anyone who isn’t a Russian Oligarch (and even to them too). Sometimes, however, they are necessary. The principle behind legal aid is, broadly, that each is assisted in accordance to his capacity and need; if you can’t afford legal help in a private market then you are assisted by the state. Our legal system is adversarial, meaning that one side argues against the other and the best argument, as assessed by a judge relying on legislation and previous cases, wins. Legal aid has helped to ensure that Davids can have the opportunity of taking on Goliaths; that people who think they have been wronged can be told that they haven’t before they waste years in litigation to find out the same. In short, legal aid has been there for those who needed it. The cuts mean that this will no longer be the case.
Perhaps you are reading this and thinking that this doesn’t affect you as you can afford legal advice. It is, however, worth bearing in mind that all that stands between your ability to afford a lawyer and the difficult situation hundreds of thousands of people (the government’s conservative estimate is 600,000) will find themselves in is bad luck. Furthermore, it is not just those who cannot afford to pursue a legal remedy that will be affected. There will be more self-represented litigants, more frivolous claims and wasted appeals (as no one will be there to advise that the claim or appeal ought not to be pursued) and good claims will be badly prepared. It doesn’t take much to realise that this will clog up the court systems (which the government has accused legal aid of doing) and, ultimately, cost the government more money than they plan to save. Your back yard isn’t safe either.
Previously, legal aid was available in a number of areas and, while the government and press continually refer to legal costs as ‘wasting money’, it should be borne in mind that legal aid has enabled UK citizens to resolve their legal problems sooner rather than later, securing accommodation, access to their children or compensation for negligent medical care.
Following the cuts, legal aid is no longer available for cases involving divorce, child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefits and education. These are areas at the heart of everyday life and, subsequently, everyday disputes. However, while these are everyday problems, this in no way means that they are easy to resolve. Areas such as benefits, welfare and immigration are complex and the people hit by these problems can find it difficult to explain their problems (an excellent article by Nadia Salam warned the government about this in 2011). Furthermore areas such as child care and divorce can be emotionally-charged and hard-fought and can really benefit from the neutral advice of a third party.
The justice minister Lord McNally said: “We are confident people will be able to access advice when they need it. We have set up online and telephone services to help people find out if they are eligible for legal aid and direct them to a solicitor, or alternative form of advice if they are not.” With respect, this fails to recognise that legal aid was there for those who couldn’t afford legal advice: they will not be helped much by a telephone directory informing them where they can obtain it, unless of course that sign-posted advice is free.
Perhaps the government’s response would be that this is where Big Society steps in. If Big Society once included Citizens Advice Bureaux it is unlikely that it will for much longer as their budgets, too, suffer as a result of legal aid and local government cuts. A number have already been forced to close, as have other non-profit organisations such as the Immigration Advisory Service. If Big Society included charities stepping in to help then perhaps the government should have considered how those charities relied on legal aid to provide their assistance (charities such as Shelter and the Red Cross have detailed the significant negative impact on their services).
When I attended the Law Society’s pro bono week events in 2012 (pro bono being the giving of legal advice for free) I did so on behalf of a legal guidance service I co-founded. There was much discussion about whether law students could fill the gap left by the removal of legal aid. While believing that law students can provide real help to local communities and also helping to integrate universities with their local communities and businesses, law students need someone to check the work they have done. They also cannot provide the continuous and focussed support that a paid lawyer can, have a limited range of knowledge (for example, university law students won’t yet know crucial civil procedure rules) and they cannot be of great help in areas that require urgent expert assistance (such as appeals against removal directions). With the legal aid cuts putting small to medium-sized law firms, who have historically provided assistance to clinics run by law students, under pressure, there may be less scope for them to fund or spend time supporting law clinic initiatives in the future. Larger corporate law firms, of course, can provide some assistance, but even then we are only seeing small levels of non-specialist support available to people in highly populated areas where universities are based; what about the more rural areas? Surely Mr Grayling, the first non-lawyer Lord Chancellor since 1673, has done his homework and thought of this?
The government likes to portray those who rely on legal aid as society’s criminals and wasters, but such a portrayal is fiction. Yes, prisoners use legal aid to challenge the government when they feel that their human rights have been violated. What the press fail to mention is that all too often the prisoner’s human rights have been breached, for example, when their continued detention is not reviewed and so they are being held against their liberty unlawfully. Furthermore, the government must be aware that law-abiding citizens rely on legal aid to secure a divorce from a cruel spouse, to obtain custody of their children or to challenge a hospital that failed to provide adequate care. Surely the government carefully read the many consultation documents sent in voicing strong opposition to and genuine concerns about these legal aid cuts?
If we step back and look at the bigger picture we can see why the government may be rather keen to cut legal aid to prisoners and other vulnerable people. The prisons are full and the parole boards cannot regularly review the lawfulness of detention as they are meant to; the Home Office has an embarrassingly large backlog of immigration applications and asylum claims, coupled with an extraordinarily poor quality of decision-making; the government’s “bedroom tax” or “spare room subsidy” is being challenged as discriminatory. At a time when the government could be under fire from numerous legal challenges it chooses to cut services that enable those legal challenges to be brought.
The £350m hole left by legal aid cuts cannot be filled by the “Big Society” as it, too, faces cuts and had also relied on legal aid. Neither can it be filled by well-meaning law students nor a sign-posting telephone line, the efficiency or cost of which is yet to be revealed.
As Lord Neuberger, President of the UK Supreme Court, said, “[i]f you start cutting legal aid you start cutting people off from justice”. The Government is putting access to justice out of reach of law-abiding people with every day problems in need of solutions … and that’s a lot worse than just closing the sweet shop.