A legal masqueraid
By Michael Mansfield QC
Provision and protection, within the law, for those substantial sections of our community who are vulnerable and fall below the average annual earnings of £25,000, are a thing of the past, consigned to the annals of history. The arena of political debate is dominated by a single theme of economic necessity in order to offset a crippling deficit. Despite Coalition promises that front-line services would be ring fenced, the Times headline on October 21 after Osborne’s Spending Review read: ‘Frontline Services Take Big Hit’.
It is clear that no corner will remain untouched, whether it be affordable social housing, an urgent school building and maintenance programme, NHS polyclinics, child welfare, tuition fees, or the provision of civil and criminal legal aid. None of these areas, and many more similar ones, are remotely responsible for the deficit in the first place. I am not, therefore, one of those prepared to swallow the swingeing policy of cuts without questioning the premise upon which they are based.
At the very moment that the Coalition party conferences were vying with each other to present the most robust axe men and women, the city slickers of the banking world chose to announce what they considered to be entirely appropriate end of year bonuses: amounting to a sum in the region of £7 billion. ‘Almost back to pre-recession levels’, they sighed with relief.
It’s worth pausing for a moment to reflect on this discreditable microcosm of the current economic environment. This figure is more than treble the annual legal aid budget. Equally, it is more than treble the intended percentage cuts in the annual Ministry of Justice budget and more than treble the paltry proposed bank levy. If, as the Minister of Justice claims, the UK is on the brink of bankruptcy, no one seems to have told the bankers.
Many banks have been saved by public money, yet continue to stockpile and not redistribute that money and now it is that same public which is going to have to underwrite for a second or third time the excesses of a shadow economy which was poorly regulated, by the Government, the Bank of England and the FSA, effectively to the point of non-regulation. Furthermore, as a cross party committee of the House of Commons determined at an early stage of this debacle, it was the bonus culture which played a major contributory role. Where are the much vaunted exhortations of ‘Fairness’ and ‘We are all in this together’? It’s rather, ‘Here we go again’ and ‘Women and Children First…’
There are a number of measures, way beyond pursuing the benefit scroungers, which need to be embraced:
Firstly, the bonus culture has to be dismantled wherever it rears its head.
Secondly, the implementation of a Financial Transactions Tax (FTT or Robin Hood Tax) has to be seriously embraced. This has been recognised by the World Bank, the German and French governments and has been detailed by Jeffrey D Sachs, the Director of the Earth Institute at Columbia University. Essentially such a tax on speculative banking transactions, bonds and derivatives, needs only to be microscopically small (0.05%) in order to raise significant sums of money: estimates vary between £20 billion a year in the UK to £100 billion worldwide (which is more than the Chancellor hopes to save over 4 years). The bank levy therefore is an extraordinarily poor substitute for the FTT and has already been shrugged off by the financial services industry.
Thirdly, billions can be raised by a clampdown on tax evasion. The Review describes a rather modest target of £7 billion instead of the estimated £70 billion owed.
Fourthly, there are, of course, the highly questionable priorities in the field of defence – namely unlawful foreign military adventures and the Trident project (now deferred until 2016 but not scrapped) all of which run into billions once again.
I felt it vital to rehearse these arguments before developing the disastrous impact of any further inroads on the provision of legal advice and representation. It is not just the Coalition who planned such cuts; the Labour government had something very similar in mind and both anticipated docking £350 million off the legal aid budget.
It is salutary to remind ourselves that at the end of the Second World War, when much of the infrastructure of the United Kingdom had been destroyed, when resources were scarce and rationed, when government debt reached 250% of GDP, it was still possible to have and construct a vision of social justice, namely the welfare state. Two of the main pillars upon which this construct was based were the National Health Service and a national legal welfare service. Since then the NHS has expanded massively with spending in the region of £100 billion (rightly so), whereas legal aid has lagged well behind on under £2 billion per annum.
The vision began with William Beveridge’s 1942 report,’ Social Insurance and Allied Services’ which led to the establishment in 1944 of the Rushcliffe Committee on legal aid. One of the more interesting recommendations was that legal aid should not be limited to those people normally classed as poor but should also include those of small or moderate means.
During the time of the Atlee Labour government, eligibility for the scheme covered 80% of the population. Under the Blair/Brown Labour governments, we have witnessed the steepest decline since it began, particularly in the civil scheme, with only about one in three of us qualifying for help. The percentage has varied according to Ministry of Justice figures from between 29% and 36%.
Legal aid is not about lawyers making profits, but about access to justice for all. Those on the cutting edge of the problems most commonly encountered, are just not going to be able to survive in a market led environment in which contracts will be awarded to large consortia and where blanket ‘One Case One Fee’ (OCOF – although I can think of a different acronym for it) criteria are applied. Front line providers, neighbourhood law centres and the smaller firms of solicitors serving recognised communities are all going to be driven out of business. Given the overall cuts, their already overburdened caseload will be disproportionately magnified by the increase in indebtedness, unemployment, discrimination, and the diminution of adequate housing and welfare rights.
There is little point in the Coalition espousing the virtues of Civil Liberties in their Agreement if the ability of the ordinary person to access, implement and enforce them is destroyed. In the past, legal aid has funded some of the most important challenges in this field concerned with the scope of the DNA database, the right to protest under the anti-terrorist legislation, the use of torture by agents of the British state and unlawful deportation in asylum cases.
In the mid-1970s, I was part of a group that helped to set up the Tottenham neighbourhood law centre. This had been preceded by one in North Kensington. The idea was to establish a network throughout the UK that would provide easily accessed advice and representation in the areas of greatest need which one way or another touch the majority of the population. It took off rapidly and was extremely effective. At one time there were well over a hundred of these centres mostly in urban areas. Now the whole situation has been reversed and there are only about 54 left in England, Wales and Northern Ireland.
In 2008, the Law Centres Federation revealed that almost one in five of these law centres lived under the threat of closure and almost half were in serious debt. On a broader front, a recent National Audit Office report discovered that 16% of legal aid providers make zero profit whilst another 14% make only 1% to 5%. Two years ago I joined a crossparty initiative launched in the House of Commons to draw attention to this parlous situation in the hope that sense would prevail. So far it has not and there are vast areas of the UK which can only be regarded as legal aid deserts.
Legal aid is a prerequisite to protecting and enhancing our fundamental civil rights – and those of us who care will fight to the end to preserve it.
Michael Mansfield’s ‘Memoirs of a Radical Lawyer’, published by Bloomsbury, are now available in paperback.