GMLC volunteer Alex Feery puts legal aid cuts in context, by challenging the presumptions and attitudes framing debates on access to justice.
The Government’s operating assumption behind legal aid policy has been for some time that the public is too eager to resort to the courts. It has denounced ‘unnecessary adversarial litigation’.[1] Individuals with genuine problems are denied access to justice not on merit but on the grounds of cost. The deeper issue is that rather than being seen as essential to maintain the long term health of the nation, legal aid instead has become something to be measured out sparingly to ‘deserving poor’ with all connotations of the workhouse. It places blame on society’s most vulnerable; fundamentally it is myopic.
‘Few of these are easy choices, but they often involve disputes about financial issues rather than life and liberty. It is sensible to give such things as financial disputes a lower relative priority.’[2]
This was put forward by Kenneth Clarke MP in 2012 promoting the’ LASPO’ bill, which brought about the legal aid cuts. The reasoning remains contradictory. Debt, welfare eligibility and housing are all issues that have substantive impact on people’s lives. Although some Legal Aid remains, large chunks of these areas were removed: forcing the public to fund their own legal representation, represent themselves or simply not bother. The result is people becoming homeless or being brought to crisis point before being deemed ‘worthy’ of assistance: too little, too late with much of the financial and emotional damage already done.
Mr Clarke MP also stated: ‘access to justice for the protection of fundamental rights is vital for a democratic society – something on which I will not compromise.’[3] Yet compromise he did with government policy imposing barriers to justice and leaving many unable to access legal advice. Courts as grandiose as the Supreme Court have acknowledged the potential interference with rights and liberties.[4] ‘Impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible.’[5]
Barriers to justice
A number of policies have presented obstacles to accessing the courts. The most significant were employment tribunal fees. Thankfully, these were found to be unlawful, but prior to that ruling, if you were unfairly dismissed by your employer, you were expected to pay substantive fees to challenge them in a tribunal. Even in cases without any form of compensation and where you had done nothing wrong.
Crucially legal aid cuts are but part of a broader landscape within which access to justice has been hindered and eroded because of the government’s fundamental assumptions and hostility. Disability entitlement assessments: ESA and PIP, require a process of mandatory reconsideration before matters can go to tribunal. This can take weeks from the original incorrect assessment. It was and arguably is the case that mandatory reconsideration is a bureaucratic time waste. The Department for Work and Pensions had a policy and key performance indicator of ‘80% of ESA claims being averted’ in respect of mandatory reconsideration.[6] On appeal however, claimant success rate ranges between 60-70%.[7] In the interim, many claimants are without funds and suffer ongoing anxiety and stress from their state of limbo. The DWP allege that new evidence at tribunal accounts for the figures; however, the Commons’ Work and Pensions committee notes that this means oral testimony from the claimant.[8] This is information that was obtainable at the initial assessment. Unsurprisingly none of the agencies used by the Government for assessments have ever met their quality assurance targets.[9] Despite this, the taxpayer is expected to pick up the bill for a costly appeal process that dehumanises some of society’s most vulnerable while also being expected to fund their own legal proceedings.
So too, can we point to the mandatory requirement for mediation as per section 10(1) of the Children and Families Act 2014. Similarly, education, debt and discrimination matters until very recently required the use of the mandatory telephone gateway. Irrespective of whether it might be suitable for the service user and has seen a substantive fall in use, as compared with provision under the Legal Services Commission pre-LASPO.[10] The barriers to the courts, attempted or otherwise, are numerous.
The Rule of Law
The question then is: so what? For an answer, unfortunately we have to be esoteric. The rule of law is a nebulous concept. For Lord Bingham however, there were eight key criteria.[11] The first was the principle of clarity and intelligibility: people should understand the law. Equally relevant are points five and six: recognising basic human rights and impartial courts to settle disputes. Disagreement is a fact of life. Families break down for assorted reasons, landlords and tenants dispute over issues of disrepair and bureaucratic systems make mistakes. None of these should carry huge stigma. Crucially, as a society we should try to mitigate the harm of conflict by providing a forum and supporting access to it so that any potential harm i.e. children’s welfare or homelessness are minimised. To decry ‘unnecessary adversarial litigation’ as Mr Clarke did, is perhaps a little naive. [12]
Without understanding an issue, we are unable to treat it. We need the GP to tell us what’s wrong before we can go to the pharmacist or the surgeon. Alternatively, society is reliant on the litigant pursuing a matter in the absence of legal advice. This is not practical, is costly and is often an unnecessary burden on the public purse. Legal advice would serve to filter out claims without merit. Equally, many are put into a position of suffering unfair dismissal rather than gambling with legal fees that they cannot afford to pay. As a consequence their legal entitlements are denied and decided not on merit but cost. The courts are a potent ally for legal remedy but can only deal with matters that actually reach them. The ‘practical effect’ of the Legal Aid cuts is to limit issues that reach the court along economic lines. In effect, there are issues and classes of people who cannot afford to protect their rights or entitlements before the law. Money was saved from the legal aid bill by mortgaging basic rights and freedoms of some society’s poorest.
The value and role of legal advice can be seen in mediation. The push for mediation is an emphasised cost cutting measure: ‘people will be encouraged to use alternative, less adversarial means of resolving many of the important problems.’[13] Mediation has a place. However, it is unrealistic to expect the lay person to use it as a tool of first instance. The Law Society’s review demonstrated: there has been no uptick in mediation following the cuts and despite best efforts. It went down. In the year following the cuts, mediation assessments decreased by 17,246 or 56%.[14] In the same period, mediation cases fell by 5,177 or 38%.[15] The view of the Law Society is that this is because solicitors are vital for referrals to mediation. [16] Without this early legal advice, the Government’s plans will be frustrated.
Presumption of mistrust
The United Kingdom has no unified expression of a constitution yet it exists in fragments. An absence now sorely felt. Lord Bingham himself captured it; ‘denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law’. Perhaps most importantly of all is the basic resonance the notion has, even with people without formal legal training. In their unanimous judgement on employment tribunal fees, the Supreme Court offered this: ‘People must in principle have unimpeded access to [the courts]. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.’[17]
Crucially, why are we as a society operating from a presumption of mistrust and doubt towards the litigant that must be rebutted before even the simplest of legal advice can be given; meanwhile, the government is gaily funding agencies with tax payer funds that are demonstrably inefficient and consistently wrong with little to no accountability.’A governmental policy: rules for thee but not for me?
By GMLC volunteer Alex Feery
Alex is student at MMU doing the GDL. He volunteers at GMLC because he had help at difficult times in his life and wants to carry that forward.
[1] Ministry of Justice, Reform of Legal Aid in England and Wales: the Government Response (Cm 8072), page 8
[2] HC Deb, 29 Jun 2011, vol 530, Column 994
[3] HC Deb, 29 Jun 2011, vol 530, Column 986
[4] R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51
[5] R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, Para 78
[6]https://www.whatdotheyknow.com/request/402400/response/978248/attach/html/2/FOI%201740%20response.pdf.html
[7] https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-july-to-september-2018 (Main Table: SSCS_3)
[8] Work and Pensions Committee, PIP and ESA assessments (HC 2017-2019. 829-I), paras 68,72
[9] Work and Pensions Committee, PIP and ESA assessments (HC 2017-2019, 829-I), para 94
[10]Monidipa Fouzder, ‘Telephone gateway ‘barrier’ to justice’ (Law Society Gazette, 3 March 2015) https://www.lawgazette.co.uk/law/telephone-gateway-barrier-to-justice/5047196.article accessed 19 January 2019
[11] Tom Bingham, The Rule of Law (Penguin Books 2010)
[12]Ministry of Justice, Reform of Legal Aid in England and Wales: the Government Response (Cm 8072), page 8
[13] HC Deb, 29 Jun 2011, vol 530, Column 994
[14] The Law Society, ACCESS DENIED? LASPO four years on: a Law Society review,(JUNE 2017), page 19
[15] The Law Society, ACCESS DENIED? LASPO four years on: a Law Society review,(JUNE 2017), page 19.
[16] The Law Society, ACCESS DENIED? LASPO four years on: a Law Society review,(JUNE 2017), page 20
[17] R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, Para 68
