London Review of Books Legal Aid article: Necessity or Ideology? Frederick Wilmot-Smith
Necessity or Ideology?
Frederick Wilmot-Smith
In the 12th and 13th centuries, judges would be sent out from Westminster every seven years to adjudicate on any disputes that had come about since their last sojourn. In 1292, in Shropshire, Alice Knotte complained that Thomas Champeneys ‘detaineth from her seven shillings in money and a surcoat of the value of three shillings’. ‘Alice can get no justice at all,’ she protested, ‘seeing that she is poor and that this Thomas is rich.’ She implored the judge: ‘I have none to help me save God and you.’
Alice then might be Alice today. What should she do? She cannot simply take the seven shillings from Thomas. Not only does the law forbid it, Thomas’s wealth means he probably has the power to take it back (or worse). So without access to a court, Alice has to rely on his goodwill for her money and her surcoat. This shows the first reason to care about access to justice, by which I mean being in a position to have your legal claims heard and enforced by a court. Such access is necessary if our rights are to have real content; without it, the rich and powerful can exploit the poor and weak. The same point demonstrates the need for access to legal advice: people need to know when they have been wronged, and how to go about getting redress.
Today, the people of Shropshire no longer have to wait seven years for their claims to be heard. But there is still a limited amount of court time to go around. We have to come up with some way of distributing these limited resources. Our courts generally proclaim themselves open to all, but the fair distribution of access to justice can, as a practical matter, be impeded in many different ways. Cost is the most obvious. In Alice’s day, presentation of a bill was free, so even the poor had some access to justice. Today, if she is unable to afford to go to court, her theoretical right to have her case heard will be small comfort. And the high quality of the English legal system has endowed it with an exorbitant price tag: court time and, especially, lawyers are expensive. This shows a second reason to care about access to justice: the distribution of such access is itself a matter of justice.
Legal aid – the state subsidy of legal services – is supposed to ensure that it isn’t only the rich who can vindicate their rights. The Attlee government’s white paper said that the system introduced under the 1949 Legal Aid and Advice Act was intended to ensure that ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right.’ Unlike the National Health Service, founded the year before, the scheme did not provide universal coverage. But roughly 80 per cent of people were eligible (this was measured by an income and assets test). Rising incomes swiftly reduced this figure, and by 1973 it had dropped to 40 per cent. Income tests were eventually amended accordingly: by 1986, 63 per cent of the population was eligible. And although legal aid wasn’t initially available in every case, most exclusions were in relatively recondite areas like breach of promise of marriage. Such broad coverage was inevitably expensive and, especially since the 1980s, policy-makers have persistently complained that the cost of legal aid is too high. Restrictions have been imposed on the types of case for which aid is available and the income test has been stiffened. By 2008 only 29 per cent of the population satisfied the means test. When the Jackson Report, an inquiry into the costs of the civil legal system, was published in 2010 falling incomes had raised the figure to 36 per cent. Lord Justice Jackson said then that it would be ‘quite wrong’ to tighten the eligibility criteria yet further.
In 2012, however, the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) was passed. It sought to cut £350 million from a legal aid budget of roughly £2 billion. (The Olympics cost nearly £9 billion; it’s estimated that HS2 will cost at least £40 billion.) Although the greater part of legal aid is spent on criminal cases, there are limits to the cuts that can be made there since the law requires that everyone receive a fair trial. Other potential methods of reducing the cost of the criminal system found no political favour. Kenneth Clarke, who was lord chancellor at the time, sought to reduce the length of sentences for serious crimes; David Cameron publicly overruled him. So, despite representing less than half the legal aid budget, civil claims – which are usually claims individuals make to remedy breaches of their rights – bore the brunt of the cuts. The strategy was to remove various categories of dispute. For instance, adult victims of medical negligence have lost all entitlement to legal aid. Family law also suffered heavily; divorce is now virtually ineligible (the cost and difficulty of obtaining a divorce was the main political motive for the 1949 act).
The cuts affected an estimated 623,000 people. Of these, the least well-off suffered disproportionately: 80 per cent of those affected were thought to be in the poorest quintile of society, and 54 per cent of benefits claimants who lost out in the changes were believed to have a disability. The inevitable effect of all this is that poorer individuals will find it harder to protect their rights. They will have to forego claims they have against others; perhaps worse, when a claim is against them they can be hauled into court even though they don’t have the means to afford a lawyer or extorted on the threat of what a court might order. Many not directly targeted by the cuts will feel their effects. For instance, a father who is prevented from seeing his child can no longer get legal aid to enforce access. (Another consequence is that prospective legal aid lawyers – especially the least well-off – will be discouraged from entering the profession. And so, a generation from now, we will yet again be faced with a lack of diversity in the judiciary. But that is another story.)
Some may be fortunate enough to receive free help from aspirant or charitable lawyers. If they aren’t, what should they do? They can represent themselves in court. A recent report of the Bar Council suggests that, in the wake of the cuts, more people are doing this. But, because the system is designed for lawyers, this creates problems for everyone. Judges have to work out whether arguments made by litigants in person have legal relevance. For this and other reasons, people defending themselves take up more court time than trained lawyers would, so delaying other people’s access to court. And the evidence indicates (unsurprisingly) that litigants in person fare worse than those with legal representation. (It’s said that a litigant in person has a fool for a client. Often, this turns out to be true even when the client is a trained lawyer: it can be hard to think dispassionately when one’s livelihood is on the line.)
Should we care? In particular, should we care that some will fare worse after the government’s reforms? With remarkable disregard for the rights of those who cannot afford representation, the government denies that ‘everyone is entitled to … a particular outcome in litigation.’ In keeping with this relaxed attitude to the protection of (certain individuals’) legal rights, it also suggests that many will, in light of the changes, ‘choose not to tackle the issue at all’. Quite so.
Under Laspo, the lord chancellor has the power to define the classes of people entitled to legal aid. The current lord chancellor, Chris Grayling, reacting in part to some high-profile cases in which foreign nationals secured victories in human rights cases funded by legal aid, recently issued a regulation that limited (with a few exceptions) the provision of legal aid to ‘residents’, those who have been in the UK for a continuous period of 12 months. Lord Justice Moses held that this residence test was unlawful. The lord chancellor’s supposed power to set a limit came from Laspo, and had to be justified by the powers granted under that act. Moses found that no such power is granted by Laspo. It follows that the regulation cannot have any legal effect: Grayling cannot make laws on his own.
Regardless of its legality, Grayling’s proposed regulation would unjustly prevent two classes of individual from obtaining legal aid. First, it would have the effect of disqualifying those so badly treated that they cannot prove their own entitlement. Consider P. (this is a real case). P. was an adult with severe learning disabilities who was starved of food and beaten regularly by his mother and brother. He was kept in a dog kennel outside the house. Thanks to legal aid, P. was able to secure representation and bring a claim before the Court of Protection, which (in the teeth of vigorous resistance from his family) determined that living with his family was not in his best interests. But P. would not have been able to prove that he had been in the country for 12 consecutive months and therefore, under the new regulations, he would not have been granted legal aid. In fact, a number of particularly vulnerable groups – trafficked people, for example, and the homeless – would be unable to protect their rights if the residence test were implemented.
Second, it would disqualify those who remain subject to the power of Britain’s agents – its armed forces, for example – or laws. Again, this clearly applies to trafficked people, as well as victims of British aggression abroad. Baha Mousa, an Iraqi citizen, worked as a hotel receptionist in Iraq. For unexplained reasons, British forces detained him. He was hooded, denied food and water, and beaten. By the time of his death he had 93 identifiable injuries on his body. No one now denies that Mousa’s legal rights were violated by British troops. (One British officer was found guilty of a war crime.) But his family could not afford to bring a legal claim. They were able to do so because legal aid was available to them. Under the new regulations, they would have been denied it. This is wrong: victims of British injustice should have access to British justice.
The lord chancellor argued that legal aid ‘is no more than a form of social welfare or benefit’. Lord Justice Moses rejected this claim for reasons specific to the case, but it deserves close scrutiny as a general proposition about the way we should understand legal aid. Even the friends of legal aid sometimes describe it as a pillar of the welfare state. This is not the way legal aid was initially understood. Injustice was not one of Beveridge’s ‘giants’; they were squalor, ignorance, want, idleness and disease. Its exclusion was partly a consequence of the postwar left’s beliefs about the best way to solve problems of social justice. Beveridge, Bevan and Morrison were particularly resistant to legal oversight of the social welfare system. They distrusted lawyers – Bevan feared ‘judicial sabotage of socialist legislation’ – and believed in political institutions. Broadly the same logic, inverted, led the Thatcherite right to enshrine various welfare entitlements as legal rights.＊ (Cameron’s Conservatives, interestingly, place great faith in centralised systems, such as universal credit.) So individuals can now bring legal claims to challenge administrative decisions denying them a particular benefit. The legal system is therefore a key means of ensuring that the distribution of the benefits of the welfare system is conducted correctly; if anything, legal aid should be called a foundation, not a pillar, of the welfare state.
There is another, more complex reason why legal aid should not be understood as a form of welfare. Our legal system imposes two burdens on every individual: duties (not to steal, not to defraud others, and the like) and the costs involved in vindicating rights (the price of hiring a lawyer, going to court etc). When people talk of legal aid in welfarist terms, they usually claim that the alleviation of these costs is analogous to the alleviation of poverty or disease. But there is a vital distinction between Beveridge’s giants and these costs. The giants are problems experienced regardless of the existence of a government or legal system; but the costs of bringing a legal claim are contingent on having a legal system, and are determined by the precise way the system is set up. The costs arise because the state demands that individuals resolve their problems by means of its legal machinery (Alice could not simply take her money, she had to bring a claim for it) – and the costs are so high because the government has privatised much of the enforcement process, with the price of lawyers dictated by a market.
Grayling’s argument may be based on a crude reductionism, which views all costs as created equal, or on the fact that without a legal system we would all face similar costs in the protection of our interests. However, the distribution of these costs would be quite different. Without a legal system to protect them, the people with the most assets would have the most to lose – and would have to spend the most to keep hold of those assets. So the creation of property rights in those assets, and their legal protection, greatly benefits these people – and they are burdened least by the system, in large part because they can afford the costs of legal protection. But the worst-off gain less from the legal protection of their meagre entitlements: not only did they have little to begin with, they are now forced to protect their interests by recourse to a byzantine and costly legal system. This demonstrates a crucial justification for legal aid. The least well off are owed relief from the costs of the legal system both by the state, which created the burdens, and (through taxation) by those who benefit by there being a legal system.
The passage of Laspo was intensely controversial and, to mitigate the risk of its undermining the justice system, two safety valves were included. The first was the provision of a power for legal aid to be granted in ‘exceptional’ cases that would otherwise fall outside the scope of the new regime. The lord chancellor drew up guidance on when legal aid should be granted. Recently, the guidance was found to be so restrictive – that is, the category of exceptions carved out by Grayling was so small – that it was itself unlawful. (Grayling is appealing this finding.)
The second safety valve was the continued funding of judicial review. Judicial review is a process designed to ensure that the decisions of public bodies, such as central and local government and the NHS, are taken lawfully. The individuals affected can challenge these decisions in courts and have judges review their legality. The government in 2010 rightly called this ‘a crucial way of ensuring that state power is exercised responsibly’. (This is not Grayling’s view: writing in the Daily Mail last year he described judicial review as ‘a promotional tool for countless left-wing campaigners’.) Days after securing the passage of Laspo, the government turned on judicial review funding, via the snappily titled Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations.
Most claims can be brought before a court regardless of their wisdom. Unique to judicial review is the requirement that a judge give permission before a claim can proceed. Permission will be granted only if a case throws up an identifiable and arguable issue. Judicial review is, therefore, peculiarly unsusceptible to abuse. The new regulations seek to eliminate legal aid payments in connection with claims for which permission is denied. At first blush, this seems sensible, but only if the reason permission is denied is that the case in question is pointless. And this cannot be assumed. Lawyers begin work before the permission hearing, and this means that errors are often – particularly in good cases – brought to the attention of the public authority involved. If the error is corrected before the permission hearing, permission will be denied. So the counterintuitive outcome is that permission can be denied precisely because the claim is a good one. The new regulation will deter lawyers from bringing such cases. And it will especially deter them from taking on cases which require a large investment of time and money at an early stage since the legal aid lawyer stands to lose most if permission is denied in such cases. Yet it is very likely that there will be such costs in cases of public importance. All this means that administrative illegality which could be corrected will lie undiscovered.
In light of this, it’s telling that Grayling, in evidence to the Joint Committee on Human Rights, was unable to give a single example of a case where a judge had allowed the judicial review process to be misused. Not only does the change seem unnecessary, its possible effects are difficult to predict. The Secondary Legislation Scrutiny Committee said that somewhere between 20 per cent and 69 per cent of applications could cease to be funded. The regulations did not require parliamentary approval or debate. Lord Pannick tabled a Motion of Regret in the House of Lords, and not a single member of the House – except the government minister Lord Faulks, whose defence of the cuts has been an ironic demonstration of the value of a capable advocate – spoke in favour of the regulations. Twelve speeches were made against them.
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Why has the government made so many changes to legal aid? Two different accounts are offered. According to the first, the costs of legal aid spiralled out of control under the Labour government and, in the age of austerity, we can no longer afford to foot the bill. This is an argument of necessity: we’re broke and cutting is the way to stay afloat. According to the second, legal aid has been supporting pointless cases, and the government aims to improve the way taxpayers’ money is spent. This is an argument of justice: resources were going to the wrong people. Which is true? (Maybe both are. But it is a rare day when we both save money and have a better service at the end of it.)
The financial case has often been made in misleading terms. Spending on legal aid rose by only 2 per cent between 2000 and 2010; during that period, the economy grew by 15 per cent, and police spending rose by 50 per cent. There is also reason to think the case itself is unsound. For one thing, a lack of data has prevented accurate forecasts of savings: the government has admitted that it ‘cannot accurately estimate the amount of funding currently received by those who would not satisfy the residence test’, and so cannot say how much the test will save. But there is a more fundamental point. Cutting legal aid is unlikely to save much from the budget when considered as a whole, because so many other costs are dependent on it. If legal aid expenditure goes up, other costs (both within the court system and in the legal system as a whole) will go down, and vice versa. Early legal advice can clear up an issue and prevent the need to litigate; and, if individuals do eventually resort to legal claims, the advice will clarify the issue, simplifying the dispute. A Citizens Advice study in 2010 found that money spent on legal advice can save the state a great deal of money: it estimated that every £1 of legal aid expenditure spent on benefits advice can save £8.80. Recently, Graham Cookson and Freda Mold of the University of Surrey reviewed a number of studies from the UK and abroad, all of which found evidence of often substantial savings consequent on legal aid expenditure.
The government was undeterred. During the passage of Laspo, the Justice Committee suggested that the legal aid cuts could inflate costs in other parts of the legal system; the Ministry of Justice conceded that it had not examined the impact on other departments. Throughout, the government dogmatically maintained – this was one of the key planks of its argument – that we have the most expensive legal aid system in the world. The claim is specious, first because figures for spending are meaningless unless placed in context, for instance by giving spending per capita, and second because it ignores the cost of the court system as a whole and the way in which spending on legal aid affects costs in other parts of the system. When the figures are put in context, the UK is in line with many other countries. In 2012 it spent less than Germany, the Netherlands or Norway, and just a little more than Slovenia. But the government has yet to show any interest in the true cost of legal aid. In evidence to the Joint Committee on Human Rights, Grayling said the government could not estimate the savings made by stopping the funding of children’s legal aid because they ‘simply do not have the data from which to extract the information’. This also meant that they could not say how many children would be affected by the change to the law. None of this looks like evidence-led reform.
If the cuts truly were a response to our present penury, one would expect a plan to restore legal aid when the coffers are full again. We could start today: recent figures showed that the Legal Aid Agency underspent by nearly £120 million last year. But there is no such plan. All indications are that the purpose of the cuts is not, at core, economic. Instead, a particular vision for society – or, as Grayling would put it, an ‘ideology’ – has been cloaked in the garb of financial necessity. The vision has two key features. The first is a commitment to inequality of access to justice. The government’s rhetoric of reform has combined bad accounting with folk beliefs that our culture is too legalistic. Hand-wringing over ‘compensation culture’ and ‘health and safety gone mad’, often bolstered with anecdotal rather than empirical evidence, is testament to the influence of the idea that we should stop thinking of various social problems in legal terms. Trading on this, the government calls for a ‘culture change’, and argues that people should pursue non-contentious means of dispute resolution. Maybe we are an overly litigious culture, too quick to insist on our rights and unwilling to compromise in the face of reasonable disagreement. Maybe many disputes are made worse by the legal framework within which they operate. Maybe. But Clarke and Grayling didn’t plan to kill all the lawyers. Instead, the plan has been to place law out of the reach of the poor. In this raft of reforms, the government has not delegalised various classes of dispute; instead, various classes of people have been excluded from the legal system. Those who cannot afford justice must do without it.
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The reforms reveal the government’s disdain for the rights of the least advantaged. But they also show that it seeks nothing less than emancipation from its legal duties. Since Laspo, three key changes to legal aid have been adopted (or attempted). One is the Criminal Legal Aid (General) (Amendment) Regulations 2013, which limit the legal aid available to prisoners. For instance, prisoners cannot now bring legally aided claims to challenge the standard of their accommodation. During the passage of these regulations, there were objections not only from the House of Lords – where 15 speeches of protest were made – but also from the chief inspector of prisons and the Parole Board, which said the regulations were ‘very likely to impede [its] attempts to deal with cases fairly’. The other two regulations I have mentioned already: the judicial review limits and the residence test. All three, in effect if not by definition, principally affect the most disadvantaged sectors of society. And all three are designed to limit the control individuals – and judges – have over the government’s actions. But then this government does not appear to take legal oversight seriously. While the Divisional Court was considering the legality of the residence test, Grayling wrote an article in theTelegraph in which he dismissed the legal challenge as the meddlings of ‘another group of left-wing lawyers’. The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2014 sought to reduce criminal legal aid fees by 8.75 per cent. Mr Justice Burnett recently found a key part of the lord chancellor’s procedure in making this change was ‘so unfair as to be unlawful’. The government’s media response claimed Burnett had merely highlighted ‘some technical issues’ about the process.
‘To no one will we sell, to no one deny … justice’, Clause 40 of Magna Carta promised nearly eight hundred years ago. A society without access to justice defaults on this promise. We are not even close to realising it. Instead, we are moving towards a state where most people are entirely incapable of securing the benefits the law promises. Can they be expected to continue to shoulder its burdens?
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