‘Access to justice is the hallmark of a civil society,’ the coalition government tells us in its recent green paper on legal aid. It is an assertion that is rendered immediately meaningless by the subsequent Legal Aid, Sentencing and Punishment of Offenders Bill, published in June. If the legislation goes through in its proposed form, it will represent a wrecking ball released in the direction of the system of publicly funded law that was conceived of as an essential pillar of our welfare state more than 60 years ago.
The government wants to scrap publicly funded advice for what’s known as social welfare law – that’s advice on debt, benefits, employment, family (unless it involves domestic violence) and housing advice (unless someone is left homeless). It’s a shocking attack on the poor and vulnerable.
In the run up to the publication of the bill, there has been the usual run of scare stories about legal aid paying for billionaire business tycoons such as Asil Nadir, or those deemed to be unworthy of legal aid such as squatters. Yes, there are inefficiencies in the system and there might even be some excess – but it is a massively unfair caricature to suggest it doesn’t reach the most marginalised in our society.
A recent study from the Legal Services Research Centre drew on 831 interviews of people at Leicester, Hull, Gateshead, Derby and Portsmouth community legal advice centres, which are mainly funded through the legal aid budget and local authority money. The study showed a grim representation of a desperately vulnerable sector of our society. Almost one third claimed to have a serious illness; more than four out of 10 suffered stress, depression or mental health problems; almost a third had no academic qualifications; and most had household incomes of under £15,000.
Roger Smith, director of the human rights group Justice, called the proposals ‘the economic cleansing of the civil courts ... Courts and lawyers will be only for the rich. The poor will make do as best they can with no legal aid and cheap, privatised mediation. There will be no equal justice for all – only those with money.’ He’s right.
The lack of understanding of ministers as to the role of access to justice in our society is shocking. To take but one example, the justice ministry appears to be proposing scrapping the automatic right to legal representation for suspects detained in police stations. If you are banged up today you are automatically entitled to free advice from a solicitor paid courtesy of the legal aid scheme.
It was PACE, or the Police and Criminal Evidence Act 1984, that introduced the universal right to representation by a solicitor at a police station. That landmark legislation was introduced as a result of bitter lessons being learnt from a succession of miscarriages of justice in the 1970s and 1980s where suspects weren’t given advice in the police station.
The right to legal advice in a police station is a fundamental cornerstone of our criminal justice system. Ministers didn’t even consult on scrapping it. The government’s plan is to means test suspects before they qualify for public funds. A civil servant will decide whether you can afford your own lawyer.
Most experts think the government will drop the proposal on two grounds. First, it is totally impractical to means test someone at 4am, especially if they are exhausted, drunk or off their head on drugs as some will inevitably be (unless of course they have brought in their wage slips, proof of welfare benefits entitlement and so on). And second, it is probably against the law.
Only last October the supreme court ruled that Scotland could no longer get away with not having a statutory right for legal advice at police stations. The EU has just published a directive on the right to legal advice and representation at police stations (the French bolstered their right to legal advice in custody last year).
‘In England, justice is open to all – like the Ritz,’ quipped the supreme court justice, Lady Hale. Courts are and should be a last resort, she said, ‘but they should be a last resort which is accessible to all, rich and poor alike.’ Justice is a right, not a privilege.