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22 January 2016

The legal aid cuts are ideological. Let’s start fighting them now

Any of us might need a lawyer one day – so ignore the silly wigs and defend them.

By Laurie Penny

Who is going to defend the lawyers? Until very recently, Britain had one of the most equitable legal systems in the world. Yet, in the face of cuts that are carving up the living tissue of justice in this country, our advocates are finding it remarkably hard to plead their own case.

Since 2012, the government has slashed legal aid, the public spending set aside to ensure that the poorest have access to good defence. And yet there is barely any public outcry. Labour’s call for another review of the legal aid changes has been largely ignored by the press, as have the protests by many judges, who are not usually noted for their civil disobedience. The demonstrations against “reforms” that have left battered women, asylum-seekers and disabled people without any legal protection have been attended mostly by lawyers – and by one nice lady who reliably shows up dressed in a tinfoil Lady Justice outfit, whatever the weather, which is as good a metaphor for the British criminal defence system as any I’ve come across.

Granted, the legal system is not the easiest client to defend, especially not when Tory austerity is already brutalising health care, welfare and education. But good lawyers don’t only take cases that are easy to win. Public-service lawyers take every case that deserves defending. And right now legal aid needs defending, or there’s going to be a miscarriage of justice that will stain our conscience for generations.

Defending doctors is hard enough these days, and most of us can imagine, however nervously, a time when we might need one of those. Nobody likes to envision needing a lawyer. And yet legal aid lawyers are to their corporate counterparts precisely what harassed GPs are to private plastic surgeons. While the top tier of the profession gets paid to make the rich look less monstrous, thousands of public servants are doggedly setting broken limbs, wiping brows and patching up the sucking chest wound of the welfare state. Nobody goes into legal aid law for the money. Graduates go into it because they believe in social justice more than they believe there ought to be a yacht in their future. But that choice is now getting harder, as firms around the country close following Justice Secretary Michael Gove’s cuts to the tendering process for service provision contracts. A 2013 report showed that 50 per cent of young legal aid lawyers earn less than £20,000 a year. Young people who leave law school with enormous debts (thanks again, Michael Gove) are finding that they simply cannot afford to dedicate their lives to the public good.

It’s not just about the money. Money matters, but the cuts that are being made are strategic, and they are ideological. Most punishing of all is the new residence test, which denies all public help to anyone who has been a British citizen for less than a year, marooning at a stroke tens of thousands of refugees, asylum-seekers and immigrants, as well as victims of domestic violence and human trafficking. In fact, the legal aid cuts appear to have been designed to deny a fair hearing to those at the sharp edge of government austerity – to welfare claimants, immigrants, domestic violence victims.

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The whole point of justice is that everyone deserves it. If you have to be rich to get fair access to the courts, the entire principle of justice is undermined. Even the staunchest anti-state libertarian can agree that if you’re going to have a government, the people need to be protected from it. That’s what the courts are for: to rectify abuses of power, to mediate people’s engagement with the state and its functions.

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To say that Britain until recently had one of the fairest and most humane court systems on the planet is a bit like boasting that you’ve made the world’s healthiest deep-fried doughnut. Nobody is saying that there weren’t problems. The civil and criminal courts are in desperate need of modernisation: that can be divined from the enduring popularity of horsehair wigs. But the government has used that to hack apart what remains and create a “two-tier” effect – a justice gap that leaves us with one set of advocates for the rich and another, overstretched, cut-
price system for everyone else.

British justice used to be admired around the world, and that was, in large part, because of legal aid. Because it was comparatively easy for ordinary people to get a fair hearing. Because of the many people who dedicated their lives to the principle that people should have someone on their team when the state is against them. That always matters: but especially so when austerity is tearing civil society apart.

I am the child of two legal aid solicitors, and spent summers working as a clerk to the court, taking notes as hard-working criminal defence lawyers tried to prevent miscarriages of justice and stop kids who had made one stupid mistake from going to prison for decades. What I learned is that the world is not divided between those people who are innocent of any crime and those people who deserve to be locked in a cage for the rest of their lives. Most of us fall somewhere in between, and that means that some day we might need a lawyer.

Of all the conniving, underhand things this government has done to erode what remained of social democracy in Britain, the assault on legal aid may well be the most venal. Here are the facts before the court of public opinion. Without legal aid, there cannot be equal access to justice. Without equal access to justice, we will be left with a two-tier court system in which only the wealthy can be sure of a fair hearing. And if only the wealthy can be sure of a fair hearing, the entire principle of the rule of law is in jeopardy. And the rule of law is the foundation of a legitimate state.

If we believe in justice – even justice dressed in tinfoil and ridiculous wigs, we must stand up for legal aid. 

This article appears in the 20 Jan 2016 issue of the New Statesman, The Middle East's 30 years war