MISLegalAID

The full version of Michael Mansfield QC's article on legal aid published in The House magazine.

MISLegalAID
By Michael Mansfield QC

The 200th anniversary of the birth of Charles Dickens is rapidly approaching on the 7th of February. Nothing could be more telling at this time than a reminder of his monumental and compelling work. His main objectives were the unequivocal exposure of the searing effects of severe social stratification upon the poor and vulnerable, the ravages of an unregulated market place, and the impenetrable arrogance of unaccountable authority. Plus ca change!

It is less well known that he honed his skills and perceptions by working at the start of his career as a court and parliamentary reporter. He did so on the pages of journals akin to the 'House',--' Mirror of Parliament ', ' The Morning Chronicle ', and ' The True Sun '. He described unvarnished pomposity and the habit of members 'to speak sentences with no meaning in them '.

There is an unsettling resonance on all these fronts bearing out the well-rehearsed observation that those who forget the past are condemned to repeat it. Nowhere is this more glaringly exemplified than the Coalition's posturing platitudes on fundamental freedoms and individual human rights.

They begin with high sounding commitments made principally in chapters 3 (Civil Liberties) and 20 (Justice), of the May 2010 Agreement. Under the general heading of Freedom, Fairness and Responsibility come the concepts of the Big Society, social mobility, the restoration of the rights of the individual. Embedded, however, in the core of this is a fundamental review of legal aid 'to make it work more efficiently'.

Note as an initial point that the criterion is not 'fairness'. Efficiency in terms of the market is rarely fair and has more to do with economies of scale and the lowest cost denominator. It no doubt explains why the L/A Bill wending it's way through Parliament strikingly omitted to mention in it's original form that it's objective was to secure access to justice!

What has been deliberately sidelined is the constitutional significance of proper legal aid provision as was envisaged by it's status as the fourth pillar of the postwar welfare state. There is little or no point in proclaiming the virtues of individual rights and the need to build on obligations under the ECHR if the individual has no realistic prospect or means of enforcing those rights and obligations should the need arise. At one stroke freedom fairness and responsibility are rendered meaningless. Such a stroke was regarded by the late Lord Bingham as an enemy of the rule of law.

Instead a process begun by Labour has been amplified such that roughly 40% of the L/A budget is to be cut - £350 million p.a. The provision of advice and representation by public service lawyers was already in a parlous state and this will ensure it's reduction to a skeletal service which is ineffective as well as inefficient.

The protection of the vulnerable is never more important than at a time of economic exigency, such as existed after WW2 which is now brought about by economic and political meltdown. They are the ones who suffer first and foremost. Jobs and homes are lost. Benefits are slashed. Schools are squeezed. Meanwhile the bonus culture trundles on unabated. The publicly owned RBS Bank has recently disclosed an intended bonus of £4 million to the head of it's investment branch, and the payment of £950 million in staff bonuses in 2011. This is on top of a 49% increase in FTSE 100 CEO's salaries of 49%, £31 billion wastage across government departments, billions owed in corporate and individual tax evasion, avoidance and non-collection. This is a far cry from an inclusive and fair society.

Meanwhile the Justice (!) Secretary announced in December a six month deferral but non revision of the same old legal aid policy mantra despite universal condemnation by respected High Court Judges, members of the House of Lords with expertise in the field and informed legal and social commentators. Hardly surprising when the list of areas to be bereft of aid is spelt out - debt, housing, medical negligence, employment, welfare, some cases of domestic violence - all of which have especially detrimental effects on women, children and the disabled. The idea of a 'telephone gateway' as some kind of substitute or precondition for advice is totally unreal. The knock on effects of delay and self-represented litigants are likely to wipe out 60% of any predicted savings according to recently published research by Kings College London.

In case MP's were too busy, a presentation of the true impact of these proposals on everyday predicaments was mounted in the House of Commons last February 2011 by myself and others before an independent panel. Citizens, not lawyers, from all walks of life were witnesses. The panel report was clear about the threat posed. Jon Robbins has also chronicled the ramifications in his work entitled 'The Justice Gap '.

The overwhelming consensus is that the so called review is not only a denial of fundamental rights but a massive false economy. It leaves Ken Clarke's introductory remarks-- ' I genuinely believe access to justice is the hallmark of a civilised society '-- with a decidedly hollow ring.

[Image] News

Tooks Chambers

Tooks Chambers is a large, modern and efficient set of barristers united in their commitment to access to justice and representation without fear or favour. Founded on 1st May 1984 at the height of the Miners' Strike, much of Tooks' early work was defending miners wrongly accused of riot and affray. Members' expertise now extends across criminal and civil specialist areas of law but with an emphasis on protecting the individual against the interests of the state.

portraiture by sarah booker