The planned transformation of Legal Aid, driven by an aim to slash £220 million pounds from the Ministry of Justice’s (MOJ) budget, essentially obliterates the right to a fair trial for citizens who cannot afford to pay their own legal fees. Implying that the proposals stray far from the promotion of justice, The Criminal Law Solicitors Association (CLSA) reminded the coalition that ‘the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country’.
Legal aid was established in Britain in 1949 and is known by many as the 4th arm of the Welfare State. It is essential in order to guarantee equal access to justice for all, as provided for by Article 6.3 of the European Convention on Human Rights regarding criminal law cases. The initial aims of the Legal Aid Act of 1949 were to provide ‘legal advice for those of slender means and resources so that no one will be financially unable to prosecute a just and reasonable claim or defend a legal right’. Whilst conservative MPs argue that the suggested changes wouldn’t entail a contradiction of these terms, senior QCs along with leading Human Rights Charities strongly disagree. The Bar Council (barristers) criticized the proposals as “damaging the British justice system, which is renowned worldwide for fairness and impartiality”.
Former appeal court judge Sir Anthony Hooper told BBC Radio 4’s ‘Today’ program that the proposals “would eliminate choice altogether” and damage quality. Legal Aid defendants currently have the right to access a specialist lawyer, meaning that those with specific concerns, such as soldiers or the mentally ill, are properly catered for. The Justice Secretary Chris Grayling plans to replace this with Government- allocated providers. Many fear that the proposals will put the vulnerable at a huge disadvantage. Interestingly, this seems to contrast to the public reform that has been undertaken by governments in the last 25 years, where the idea of individual responsibility in terms of choice of health and education has dominated the political landscape. For some time now, our governments have promoted the ‘consumer model’, where individuals are supposed to choose which ‘provider’ they prefer. This chimes with the ideology that the right to a wide range of baked beans brands is tantamount to freedom. The fact that the government is now reducing choice to those who have no buying power in seeking legal help, is extremely telling. It seems the present government are happy to dump any-old lawyer on a legal-aid recipient, showing that ‘the fourth arm of the welfare state’ is grossly under-valued.
In addition, Chris Grayling’s plans to pay a flat rate to these legal aid representatives have led some to fear that lawyers will be tempted to encourage their clients to plead guilty. The Bar Standard Board (BSB) explains ‘setting the same fee for cases where a defendant pleads guilty and for longer trials may create an incentive for lawyers to encourage clients to plead guilty’. Surely it is fair to say that hurrying justice results in no justice being achieved at all. The conservative MP and barrister Bob Neil said ‘I don’t actually think the public reckons it should be paying for repeat offenders going back to their regular solicitors … Some senior lawyers do not understand that the public do not believe it is appropriate to have a system which gives a blank cheque “. In quite clear terms this statement spells out the belief that ‘innocence until proven guilty’ is not applicable to those who are too poor to afford legal representation. This mind-set that ‘even if you didn’t do it this time, you got caught so you probably have done something in the past’ exists in Oliver Twist and has no place in the world today.
High street, criminal Law solicitors earn between £25-35k (in comparison to GPs who earn £90k or commercial lawyers earning 60-70k plus). Such practitioners already differ strikingly from the ‘fat-cat’ image of lawyers that is ingrained in the public, and they are soon set to find themselves in an even worse position should these changes go ahead. Essentially, the new system will fail to support lawyers who feel morally obligated to take on cases if they are even remotely risky. Price competitive tendering contracts for legal aid will be introduced. This term means that the government will ask various firms to say how they would approach the job and the cost. The firms will then put in a bid showing the cost and quality and the big cheese chooses. This draws obvious parallels to the 2012 Health Act and the attendant questionable NHS reforms. Passing responsibility to GPs, hospital managers and commissioning groups under the guise of ‘increasing choice’ is a misnomer. What is actually at work in both these cases is reducing cost by passing the buck to the lowest bidder (via already over-worked GP’s in the case of the NHS), and inevitably damaging the quality of our services. Adding more competition will mean that the law industry, already renowned as cut-throat, will begin to live up to its reputation. In the world that the conservatives are building only the fittest survive.
To defend the present arrangements Bob Neil called for ‘a reality check’ as the justice system cannot be expected to escape government cuts. The present legal aid system costs £2.1bn a year, a price that he finds unjustifiable. He and Chris Grayling insist that the proposals would continue to deliver fair access to justice. In truth, these proposals come as little surprise. The cuts aiming to reduce £220 million from the MOJ come after successive years of cuts in court fees. For legal aid, the high point was from 1970-1986 and expanded from an annual £8m to £265m between these times. In 1970 London’s first Law centres were established by a Labour government. Here, free legal advice and representation was offered. This was based on the ambitious model proposed by President Johnson in America under his War on Poverty. It was hoped that visiting a family solicitor would be as routine as a trip to the doctors. Surprisingly, Legal aid was insulated from most of Thatcher’s cuts because of the relatively small level of expenditure, and not wanting to risk an alienating an influential lobby. The destruction started with John Major and was successfully continued with the rampant sledge hammers of New-Labour, so that by 2010, Legal aid was only limping along and an easy target for this conservative government.
What is happening now is frightening. Every ideal of democratic civilization is based on the principle that the law must apply to the mighty and meek in the same way. Those in power have no reservations about using public funds for legal cases such as the Leveson Enquiry, in which case how is it acceptable to compromise justice for the tiny mortals far, far below? Perhaps it is easier to justify such things if the people you are harming can only be seen with binoculars through the windows of your jumbo jet. Their cries are muffled by ignorance. Despite the gravity of the proposals and the consequent implications, they are virtually unknown by those who they will affect most.
By Marianne Tuckman