Legal Aid’s Still On The Brink

Liz Davies, writing in the Morning Star on Saturday 14 September, delivers a grim warning about the future of legal aid.

The misleading headlines in recent weeks were all “government U-turn on legal aid.”

In fact legal aid remains under severe threat and the campaign to retain it needs intensifying.

The government has indeed backtracked on two elements of its plans for legal aid.

Those charged with criminal offences will now have some choice of solicitor.

And there was an acknowledgment that the proposed system of price-competitive tendering for criminal legal aid – meaning the lowest bid would always win – is not appropriate.

So Eddie Stobbart and G4S aren’t yet on the agenda. But give it time.

However, the real threat is to the very existence of legal aid.

The government may have changed some details, but it is determined to cut £220 million from the legal aid budget.

It will do this by cutting the rates of fees paid to lawyers and, as previously proposed, removing legal aid from those it considers to be undeserving – prisoners, people abroad who might be entitled to sue the British government, people who are here unlawfully or whose immigration status was only regularised in the previous 12 months, “wealthy” people facing criminal charges, ie where the family income is £37,500 or more a year after deduction of certain costs.

Removing legal aid from those particular groups is entirely ideological.

The cost of prisoners receiving legal advice about their treatment in prison is tiny, but prisoners are considered undeserving.

The Justice Secretary Chris Grayling has said that he does not believe that citizens of Iraq, who suffered ill-treatment at the hands of British troops, should be entitled to legal aid to sue the British government.

We all know that the government believes that illegal immigrants should not have any rights.

The consequences of denying legal aid are severe. There were be more complaints within the prison system brought by prisoners and they will be more protracted.

Why shouldn’t Iraqis who have been beaten, abused, tortured or had relatives killed by British troops be entitled to sue our government for that abuse?

The way to curb those cases is to make sure that British troops respect human rights – or not invade other people’s countries.

The problem with denying legal advice to people who are, or might have been, here without proper immigration status is that they are more likely to stay underground.

This means that they are more likely to be begging, or starving, on the street. Women are more likely to have to provide sexual favours for money and children are less likely to attend school.

The government’s proposal also contains changes that would render test cases – usually brought against the government – impossible to bring. It’s unsurprising that the executive prefers not to be challenged in court.

Denying legal aid to those groups is not about saving money, it’s ideological.

The remainder of the proposals are both ideological and save money.

The stark reality is that the legal aid system is already barely hobbling along.

It’s embarrassing to talk about money because legal aid lawyers such as myself regard ourselves as public servants, providing a public service.

Sadly, we never had a National Legal Service, and so the public service of legal aid is provided through the private sector – self-employed barristers and private firms of solicitors.

We have been happy to be paid a decent and professional wage for our work. We were, and are, committed to that work.

Now legal aid lawyers talk about money. But it’s not about how many millions might be received for representing a multinational corporation.

It’s about whether a solicitor’s firm can survive for another six months, whether it will bring in enough legal aid money simply to pay the bills.

The staff costs in a legal aid practice are not high. In 2009 the Guardian found that lawyers in legal aid had an average salary of £25,000.

Young Legal Aid Lawyers reports that junior barristers, starting off their careers and carrying a debt of between £15,000 and £35,000, might be earning between £500 to £1,000 per month, out of which they pay their professional expenses before they can pay their household bills.

Quite simply, these days all legal aid lawyers are constantly wondering whether they can afford their outgoings each month.

Each month, we hear of two or three legal aid firms or law centres closing, as they lose the struggle to pay overheads from legal aid income.

Every legal aid lawyer works long hours, partly because they are dedicated to their clients and partly because a 40-hour week at legal aid rates would not bring in enough money to keep the firm going. The government has been exploiting our goodwill for many years.

The infamous “fat cat” lawyers, whom both Labour and the coalition have so enjoyed attacking, are not representative of the legal aid world.

There were a handful of them – highly paid criminal defence silks. Those people are coming to the end of their careers.

The battle is not for lawyers’ jobs, although I do enjoy my job and would like to continue fighting for people’s rights on legal aid.

If law firms cannot afford to make ends meet on legal aid, they will stop doing legal aid. Law centres and citizens’ advice bureaus will close.

There will remain a desperate need for legal advice and representation for people who cannot afford to pay for lawyers.

Anyone who’s been a victim of Atos wants to know if they can challenge the decision that they are capable of work. Most people on benefit are now expected to pay towards council tax and want to know if they can challenge that decision.

When universal credit is introduced next month the chaos is expected to be overwhelming.

Claimants will be left without money and will want advice on how to get it.

As rents increase and housing benefit is cut – not least if you are unlucky enough to be caught by the bedroom tax – you will want advice on how to keep your home.

You may need advice on getting the right aids and adaptations from social services or ensuring that your child has a proper educational needs statement.

My work involves trying to get my clients a roof over their head, rather than being condemned to sleep on the street. I don’t always succeed, but when I do it’s because of legal aid.

If there are no or very few legal aid lawyers then that advice won’t be there.

The details of the government’s new consultation are unbelievably convoluted.

But the bottom line is this – an already underfunded and overstretched legal aid system is going to be subject to yet more swingeing cuts.

A legal aid system that is just creaking along will become impossible in practice.

There will be two-tier justice. Those who can afford to pay will receive legal advice, those who can’t will be poorly represented by underpaid overworked lawyers or not represented at all.

Most of those who cannot afford lawyers will simply be shut out of access to justice.

Some will try to represent themselves. Courts will become clogged by people bringing their own cases, trying to do their best, but their lack of legal knowledge and experience inevitably prolong the case.

Already judges are complaining about litigants in person bringing lengthy cases that – had they been represented – could have been resolved by negotiation or reduced to one or two key points.

That there was any sort of climbdown is a tribute to the very broad campaign – well beyond the legal profession – to save legal aid.

That campaign now has to intensify. Lawyers should consider withdrawing their labour. We need more noisy eye-catching protests.

We need MPs to oppose this in Parliament – after all, with less legal aid, there will be longer queues at their surgeries. Most trade unions and political campaigns defending the welfare state already incorporate defence of legal aid into their demands. We must make sure that those demands keep being pressed.

Legal aid is part of the welfare state. Those of us who deliver legal aid are public servants and we have a responsibility to fight for legal advice for whoever needs it, not just for the rich. We need lawyers on the picket line.

This article was first published in the Morning Star. Liz Davies writes here in a personal capacity.

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