More unequal than others
20 June 2011
Main Page Content:By Jon Robins, Sophie Khan
Lawyers behind the Commission of Inquiry into Legal Aid were well aware of the accusations of bias likely to be levied against them. As leftfield organisations opposing the legal aid budget cuts the Young Legal Aid Lawyers and the Haldane Society expected to be criticised for trying to pass off their inquiry as a piece of independent research.
What has come out of their series of hearings held in the Commons earlier this year undoubtedly reflects their existing wider social concerns: that the cuts will reduce access to justice for the vulnerable and that this, in itself, is bad for our definition of an effective justice system in a democratic society.
But their findings, published this week by Solicitors Journal in the Justice Gap series under the title Unequal before the law?, also evidence a unique, genuine attempt at bringing together in a non-political setting all interested parties holding differing views.
It is perhaps unfortunate that organisations in favour turned down the opportunity to send representatives to appear in person, preferring instead to send their comments in writing, refer the panel to previous position papers, or just not respond to the invitation.
Still, the findings shed new light on how legal aid has helped real people facing real difficulties, who would otherwise have been unable to bring or defend a case.
Two of the witnesses were at the launch event of the report last week. S, whose son had trouble at school and had been expelled several times, was only able to have him assessed following assistance by a legal aid lawyer. The result was that she was later able to secure a place in a SEN school.
The other witness, P, threatened with eviction after 47 years in the same property, was only able to stay in her home after two rounds of court proceedings. The first instance judge ruled in favour of her landlord but his decision was reversed on appeal. Importantly, her case showed that it was not only about the money and her ability to fund the case, but that without a lawyer able to take her case to appeal it would not have been possible to reveal that the first instance judge had made an error in applying the law.
Neither S nor P would be able to obtain legal aid if the proposed reforms go through, leaving S in a precarious financial situation, and P moving to a different neighbourhood where she doesn’t know anybody. Which raises a wider issue highlighted by several original witnesses and parliamentarians who joined in the debate held for the launch of the report. Legal aid, said Conservative Peer Lord Newton, cannot be looked at in isolation from other elements of the social concerns. The former social security minister said the proposed cuts would not give vulnerable people adequate protection. If a reform is to take place, he said, it must be in the context of broader parallel proposals. The availability of legal aid for welfare problems, for instance, should be considered in with the proposed welfare reform bill and localism bill. And Lord Bach, who hosted the event, said the proposed cuts were “economically illiterate”.
Access to justice not just about legal aid
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Ministers tell us in last November's green paper that access to justice is "the hallmark of a civil society". At the time of writing, ministers are putting the finishing touches to draft legislation that, unless there is an unexpected change of heart, will remove £350m from a £2.5bn scheme.
Access to justice, as it is embodied in the civil legal aid scheme, looks like it will be disregarded as a luxury we cannot afford.
Earlier this year MPs were given a series of powerful, often uncomfortable, reminders as to the important role of publicly funded legal help in our society. The event took place in the House of Commons on 2 February. It was organised by the Haldane Society of Socialist Lawyers and the Young Legal Aid Lawyers.
The Commission of Inquiry into Legal Aid was a unique event. The exclusive focus was about examining what kind of safety net our system of publicly funded law provides for the poor or vulnerable clients (usually both) who rely upon it.
A series of ordinary people - not lawyers - gave testimony before a distinguished panel of non-lawyers in a crowded committee room 10. The former Liberal Democrat MP Evan Harris, the canon of Westminster Abbey, the Reverend Nicholas Sagovsky, and Diana Holland, assistant general secretary of the trade union Unite, weighed up evidence they heard at the session as well as written submissions from the recipients of legal aid and experts. They listened and then questioned people such as 'EP', a mother of two and victim of domestic violence. She recounted the trauma of escaping a self-destructive and abusive relation ("I was just giving up on life. I did not have the energy or the will to try and sort myself out...")
They also heard from Zoe Kealey who talked frankly about the unbearably painful events that led up to her brother Darwin hanging himself in Wormwood Scrubs. Her family was represented by a legally aided lawyer at the inquest ("Without legal aid we'd have been left with a void of not knowing what happened to Darwin").
The event made a powerful point. Access to justice is not just about legal aid, nor is it about access to the courts and a competent lawyer. It is a much broader concept. It encompasses a recognition that central to any notion of a decent society is ensuring that legitimately held rights are protected and can, if needs be, be enforced in a court of law.
Unequal before the law? publishes the findings of the three panellists, nonpartisan and independent-minded experts who all have a long track record of promoting social justice. By their own account, they are relative strangers to the specifics of legal aid. It also collects the testimony they considered (both 'for' and 'against') and we hope that it serves as a useful introduction for people who want find out more about the role legal aid plays in our society.
The panellists findings speak for themselves. They are:
Legal aid is vital to protecting the rights of vulnerable people.
Legal aid is vital to upholding the rule of law.
Legal aid is essential to holding the state to account.
Cutting legal aid is a false economy.
A holistic approach is needed in providing legal aid.
Cuts to legal aid will drive out committed lawyers.
Cutting legal aid is not a fair or effective way to reduce unnecessary litigation.
Jon Robins is a freelance journalist and director of legal research company Jures. He is also Justice Gap series editor
Citizen Khan
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With lobbying patently unsuccessful at making the government change its mind over legal aid, citizens have only one option: take to the streets, says Sophie Khan
There is a lot to be said when 90 per cent of the responses to the consultation on legal aid disagree with the proposals. But for some reason that does not make any difference to the government. They will not heed the 'warning' signs that have been waved in their faces by the young, old and the ugly and will now plough away as they did with the cuts to the public sector. The changes to scope will go ahead and the legal aid budget will be slashed.
So, what does this mean in real terms? To me it will mark the beginning, unfortunately, of the end of 'legal aid' as we know it. The fourth basic right that we have in this country will be torn from us and, no doubt about it, it will leave the vulnerable and those less well off at the mercy of abuse and injustice. The pro bono sector will not - it doesn't matter how much Mr Djanogly and Lord Goldsmith wish and pray - pick up where legal aid ends. The pro bono caseworkers will not have the relevant expertise to advise the public and without that a vast majority of the public will be left to fight their own corners in and out of the courts. The heavy powers will reap the rewards of the cuts as their actions are more likely to go unchallenged and should they be challenged they will storm down with hell-fire style lawyers who will not take any prisoners. Without lawyers like me to counter-balance that authority and take them to task, the long-standing civil liberties and rights that we all enjoy will slowly be eroded.
But maybe that is the ultimate plan. If there are no rights, there are no protests. Let's join forces with the protest movement and change that so that the right to protest lives on.
Sophie Khan is a solicitor advocate specialising in actions against the police at GT Stewart. Contact:
s.khan@gtstewart.co.uk 
