“To no one will we sell, to no one deny or delay right or justice.” Magna Carta, the constitutional document that founded this principle, will celebrate its 800th anniversary in 2015. This has not been lost on the Conservative Lord Chancellor, Chris Grayling, who will mark the date with a celebration of Britain’s “unrivalled legal expertise, based on a long history of freedom and justice.” Unfortunately, the celebration will be a bitterly ironic one in light of his commitment to cutting the legal aid budget of England and Wales. It is telling in itself that a complete assessment of the detrimental effect of the cuts upon criminal, civil, and public justice could not possibly fit within this article. Instead, this article will limit itself to arguing that the cuts clash with Magna Carta by creating a two-tier legal system in which the rich have greater access to justice than the poor.
Legal aid is part of the post-war welfare state. The budget set aside for it pays lawyers at below market rates to advise or represent citizens with a sufficiently strong case. The provision of civil legal aid is both means and merits tested and cases with less than a 50% chance of success will not be funded. Evidently, the poor have never had the unfettered access to legal advice enjoyed by the rich. Nevertheless, legal aid recipients could at least expect to be represented by lawyers with a level of expertise that corresponded with the complexity of their case. This expectation peaked in 1979 when 79% of the population qualified for legal aid in one form or another. The legal aid budget is put in perspective, however, if one remembers that even at its peak it would have funded the NHS for just two weeks. As far as expenditure goes, this was a relatively low-cost means of promoting something like a level playing field between rich and poor litigants.
Successive governments, both Labour and Conservative, have been cutting legal aid since 1979. Today the system teeters on the edge. The £2.2bn legal aid budget has been cut by £540m in total with £320m being withdrawn from civil legal aid and £220m from criminal legal aid. These cuts undermine all areas of publicly funded law and effectively spell an end to legal aid in most civil practice areas. As such, they have met with unprecedented opposition from lawyers and non-lawyers alike. The conflict over legal aid is critically important since it is lawyers who speak for us when we enforce our legal rights and it is only through legal aid that most people can afford a lawyer.
From the outset it is important to emphasise that the cuts affect everyone. Although falling with predictable severity upon minorities, the cuts withdraw legal aid from practice areas of concern to all citizens. Amongst much else, it has been withdrawn for family, welfare benefits, employment, clinical negligence, and housing law. It’s likely that even the most law-abiding citizens may someday need advice in these areas. For instance, many of us may require family law advice given that 42% of marriages end in divorce. We might also consider the 30m families on benefits, some of whom will need advice when the introduction of universal credit redefines who merits state support. In the absence of legal aid, those seeking advice must pay for it privately or do without.
The absence of legal aid passes the advantage to the richer party in any dispute. Let’s consider a dispute over child contact during a divorce. In this divorcing couple, the husband had remained the breadwinner while the wife had left her job so she could shoulder familial responsibilities. His independent salary now enables him to afford a solicitor and barrister. These legal experts conduct the complex casework and advocacy that go into building the strongest case possible. In the absence of legal aid, or a trust fund, the unsalaried wife cannot afford these services. Without a barrister, she must represent herself unprofessionally and in a case to which she is emotionally attached. The strength of one’s case does not speak for itself and hers will suffer for lack of expert representation. All else being equal, the husband is more likely to have his way for no better reason than his wealth. This is but one example of how the absence of legal aid fosters an imbalance of power between litigants of unequal means. The richer spouse, landlord, or employer can afford legal resources that are unaffordable to the poorer spouse, tenant, or employee.
The government grants access to justice a fig leaf by offering legal aid in exceptional cases. For example, family law legal aid is available to those who can prove they suffered domestic violence. Stringent benchmarks must, however, be met before a case is acknowledged as exceptional. This is problematic for many reasons of which this article will consider two. First of all, many will lack the means to satisfy the benchmarks. For example, proof of domestic violence may require a doctor’s letter (approximately £50), a memorandum of conviction (£60), and a police disclosure (£75). For many people these sums are simply unaffordable. The most vulnerable, such as those lacking linguistic or intellectual capacity, are even less capable of collecting such proof. Secondly, these benchmarks have an air of Catch-22 about them. For example, legal aid for immigration law has been removed but an exception is made for asylum seekers. Many new arrivals are, however, unlikely either to know of their exceptional status or to have the means of proving it. The collection of proof has become necessary to receive legal aid, but it is lawyers who facilitate the collection of proof.
Grayling responds to these concerns with assurances that the rule of law will be preserved. Ultimately, however, the Conservative argument is not about justice – it’s about money. This is made clear by the well-worn refrain that our legal aid system is “unsustainable”. Making this claim allows Grayling to plead that the hands that cut are tied by austerity. It is a politically convenient argument but one that buckles under scrutiny. The annual savings of £540m will, after five years, have dented Britain’s £1200bn national debt by around 0.2%. Keep in mind that these cuts are imposed by the same administration that found the funds to attack Gaddafi (£1.75bn) and was ready and willing to spend similar amounts on a dubious Syrian adventure. Moreover, multiple academics, lawyers, and non-governmental organisations emphasise that the cuts are a false economy. The savings will be dwarfed by the collateral costs to society created by the inaccessibility of legal advice. If legal aid is not literally unsustainable, and if the actual budgetary savings are doubtful, then what justification remains?
Though never stated outright, the answer is that Conservatives simply do not think the state should subsidise legal advice. This is apparent in calls for an “ambitious culture change” and complaints that “the poor [have become] extremely litigious”. The party’s free market approach towards access to justice has become apparent to practitioners. Liz Davies, barrister at Garden Court chambers, states that the cuts “are about shutting people who can’t afford lawyers out from access to justice.” Grayling insists that such people can turn to cheaper but equally effective alternatives like mediation. What he fails to register is that this is unjust regardless of whether or not these alternatives are workable (and mounting evidence suggests they’re not). It’s unfair because those with money could agree to mediation, but they could also choose to deploy as much legal firepower as their bank account can muster. Meanwhile, those without money or exceptional circumstances are limited to mediation or self-representation. Those of moderate means might be able to afford legal advice but in the knowledge that it could be ruinous. In Davies’ words, the absence of legal aid creates “a two-tier system of justice allowing rich people to litigate but denying that possibility to the poor.”
Austerity has given air to the otherwise repellent argument that the poor can and must be satisfied with less access to justice. The rich, on the other hand, can enter any dispute safe in the knowledge that they can enforce their legal rights more effectively, for longer, and with less risk, than anyone without comparable resources. Grayling is the figurehead for this new status quo but, love him or loathe him, you can’t deny his immaculate sense of timing. His celebration of Magna Carta will coincide with the moment that wealth is re-established as the primary determinant of whether you can enforce your legal rights. As with so much else in modern Britain, this ambitious new culture is one in which money talks. The result is that the very people most in need of the court’s protection will find that justice, though always blind, has become dumb too.