Fourth pillar of the welfare state

Liz Davies writes in the Morning Star on the implications of legal aid cuts

On April 1 cuts of £350 million from the legal aid budget of £2.1 billion came into effect.

As of now, there is no free legal advice for employment cases, non-asylum immigration cases, consumer rights and, most perniciously, welfare benefits.

Those needing welfare benefits advice are, obviously, the poorest in our society. The Department for Work and Pensions (DWP) should of course get its decisions on who is entitled to what right.

Yet 40 per cent of challenges against DWP decisions succeed, showing that it freq­uently gets decisions wrong, most scandalously when disabled people are certified as fit for work.

From now on it will be almost impossible to get independent advice on whether to challenge a DWP decision.

There is now no legal aid available for family disputes, unless domestic violence is involved. This will actually lead to more disputed court cases and more acrimony between separating couples.

Family lawyers are required to try to resolve family disputes amicably, using courts as a last resort.

These were the Laspo (Legal Aid, Sentencing and Punishment of Offenders Act 2012) cuts. For the last two-and-a-half years, a coalition of legal aid lawyers, trade unions, the Citizens Advice Bureau and other voluntary sector and campaigning groups had fought tenaciously against these cuts.

An independent commission of inquiry organised by the Haldane Society and Young Legal Aid Lawyers reported in June 2012 that legal aid is vital to protecting the rights of vulnerable people, to upholding the rule of law and to holding the state to account.

It found that cutting legal aid is a false economy – court cases take longer when non-professionals have to defend themselves – that cuts to legal aid will drive out committed lawyers and that cutting legal aid is not a fair or effective way to reduce unnecessary litigation.

And then on April 9 the Ministry of Justice announced more cuts – an additional £220-300m a year.

The targets are the Tories’ favourite hate-figures – defendants in criminal cases, prisoners, people without lawful residence in the country and legal aid lawyers.

At first glance, making defendants with a disposable income of £37,500 or more ineligible for criminal legal aid seems irrelevant to socialists.

However, just like free treatment on the NHS means that patients and their families don’t have to worry about paying for treatment when they have so much else to worry about, so the availability of legal aid means that someone facing criminal proceedings can concentrate on his or her defence.

After all, that person might be innocent. Legal aid will be seen as a poor person’s option. Just as the Tories want to create a health service where those who can afford to will pay privately, so NHS treatment is seen as sub-standard and only for those who cannot afford insurance, the same will apply in the courtroom.

The other proposals are straightforwardly appalling. Currently prisoners receive legal aid to help them challenge disciplinary decisions or other “treatment” issues in prison.

If you are incarcerated, being able to challenge apparently petty disciplinary decisions gives you some measure to control and autonomy.

In addition, some of those “treatment” issues have ended up at the European Court of Human Rights – a prisoner’s right to have his or her correspondence with a lawyer remain confidential, or the notorious decision that prisoners should be entitled to vote. No more ground-breaking cases on prisoners’ rights will be brought.

Legal aid is to be denied to anyone who is not in Britain or Northern Ireland lawfully. Many of my clients came into the country on a visa and then overstayed.

They remain underground, invisible to the authorities, until such time as they may be destitute.

If they have children and are genuinely destitute, social services have a duty to help. But frequently, social services simply turn those families away.

Legal aid means that the children can enforce their rights, so that social services don’t leave children destitute. Without legal aid, there will be more destitute children because their parents are so-called “illegal immigrants.”

Criminal defence lawyers face a complex process of competitive tendering leading to a race to the bottom.

Large corporations, such as Capita or A4E, want to deliver legal services just like they deliver housing benefit, education services or employment advice – cheaply and badly, employing low-paid staff to tick boxes.

Cases will be poorly prepared, important points of law or facts will be missed and there will be pressure on defendants to plead guilty.

Miscarriages of justice will result and will not be remedied for years.

Civil legal aid lawyers have tried to absorb cuts in funding for several years now and now see rates being cut by over 50 per cent.

Soon there will be no specialist legal aid lawyers in either criminal or civil law. If legal aid exists at all in the future, it will be as an small adjunct to a solicitor’s business, almost a pro bono or charitable area of work.

Charitable work might be done with good intentions but it doesn’t make up for a professional, specialist service.

This is not special pleading for lawyers (declaration: I’ve spent 25 years working in legal aid). The reality is that these cuts to legal aid rates mean the end to a legal aid service.

Liz Davies is a barrister specialising in tenants’ rights and homelessness law. She is Chairwoman of the Haldane Society of Socialist Lawyers.

A petition against the cuts can be signed here.

This article was originally published in the Morning Star.

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One Response to Fourth pillar of the welfare state

  1. Pingback: Fourth pillar of the welfare state – Garden Court Chambers Blog | Current Awareness

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