Yesterday I wrote about the Labour party’s plans to reinstate legal aid, so that people who need to challenge social security decision-making may access legal support to do so. A number of people commented that we shouldn’t need legal aid to challenge the government’s welfare policies, as they should be fit for purpose in the first place.
However, I think that is a measure of how very low public expectations of government have sunk. What the Labour party are offering, to date, is a reformed social security system that does not punish the very people it is meant to support. So far their pledges include scrapping the bedroom tax, the Conservative’s sanction regime, the work capability assessment, the personal independent payment assessment, and a ‘root and branch’ review of the welfare system more generally, to ensure it is fair and adequately supportive.
Social security as it stands does not provide enough support to meet the essential costs of living, which has had some recognisable and catastrophic concsequences. The Labour party’s work on welfare is ongoing, and importantly, it is in consultation with disabled people, allied organisations and academics who have researched the woeful and absolutely unacceptable shortcomings of the current system. The consultations have been ongoing, too, indicating a party that is democratically inclusive, responsive, and is genuine in its claim to meet the needs and best interests of the many.
The Conservatives have turned justice into a commodity for the very wealthy. Legal support is available, provided people can afford it. That unequal access to justice serves as a buttress for social inequality and political oppression.
Furthermore, a government owes its citizens distributive justice, too: fair policies, just laws, effective means to participate in how we are governed, fairly distributed resources and services, and so on. The Conservatives are unable to understand that justice is the application of the law equally to all citizens of the state, and that in democracies, policies are generally regarded as a mechanism for distributive justice, they are not devices for the withdrawal of justice and increasing oppression.
Similarly, human rights are also universal. That is the whole point of them. However, the Conservatives have also made them increasingly conditional, which has exposed some communities and social groups to increasing political discrimination.
Recently, the Bar Council chair said the rule of law is at risk because of such “political folly and expediency.” Andrew Walker QC also said that justice in the UK is at risk because of political decisions that threaten to undermine the independence of the judiciary, underscoring a deep anger coursing through the legal profession.
Walker used his speech to the Annual Bar and Young Bar Conference last month to say: “In truth, in the last decade, we have been following a course that has set its face against justice, by political design, political folly and political expediency.”
He added “Cuts to legal aid represent “a huge threat to access to justice in our country. If we can no longer deliver access to justice of which we can be proud – even worse, if our systems of family and criminal justice start to fail – then our justice and rule of law are at risk.”
The comments reflect widespread, mounting concern about cuts to the legal system and the impact they are having on access to justice.
Referring to they way the justice system in the UK had taken centuries to evolve, Walker said: “Just because something is longstanding does not mean that it, or the people in it, are unbreakable.”
Many of us raised these concerns when the cuts were first proposed by the government. Access to justice is an absolute constitutional principle. It must not be undermined. Access to justice is a fundamental democratic right, and the chaos and failure unfolding across the legal system as the result of cuts should concern everyone who cares about justice.
The Ministry of Justice is under criminal investigation by the Information Commissioner’s Office for having failed to publish its research in full when ordered to, opting instead to publish a short and incomplete summary. A review of 2012’s Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) is being carried out. But ministers have already delayed far too long in the face of clear evidence that cuts in the family courts have been harmful.
Official figures show that the proportion of litigants with legal representation fell from 60% in 2012 to 33% in the first quarter of last year, and it is not uncommon for one party in a civil case to be represented by a lawyer while the other is not. Last year one senior family court judge, Mr Justice Bodey, described the current position as “shaming”, while Mr Justice Francis said it was “remarkable” that the parents of Charlie Gard did not qualify for legal aid in their dispute with their son’s doctors.
Meanwhile, the Law Society began a judicial review of cuts to the fees paid to solicitors for legal aid work, while a strike by barristers, which saw more than 100 chambers refuse to take on new cases, was called off in June only after the government came up with additional funds.
Legal aid began in the UK in the 1940s, along with the rest of the welfare state. In the US, a defendant’s entitlement to a lawyer in a criminal case is enshrined in an amendment to the constitution. While the rules in the UK may lack this constitutional underpinning, people should still be entitled to access to justice – including lawyers paid for with legal aid. Without equal access to justice, human rights frameworks are pretty much redundant.
In a functioning democracy, regardless of what kind of policies a government puts in place, we must have equal access to justice. Legal aid was part of our post war democratic settlement, and the Conservatives have dismantled most of that. Restricting our access to justice was part of a deliberate and coordinated attack on citizens’ most fundamental rights, in an attempt to prevent people holding the government to account for their devastating welfare ‘reforms’ and cuts to the NHS, among other authoritarian changes the government have made to our society.
A key point is this. Even when we have a rather more fair, balanced and egalitarian government in office, we must always, nonetheless, have access to justice, so that if or when things go wrong, we can hold that administration to account. In pledging to reinstate legal aid, Labour are not only doing the right thing, they are demonstrating a willingness to be held democratically accountable for their policies and their consequences. That must surely inspire a degree of faith and trust.
These are the essential mechanisms of democracy that we seem to have forgotten over the last eight years. We no longer expect government to act in the best interest of citizens.
However, that is not true of all governments.
I am hopeful that the Labour party’s social security policies will be fit for purpose precisely because Labour plan to reinstate legal aid. It shows that they plan to implement policies that comply with human rights frameworks, and are therefore much less likely to face legal challenges in the first place. Legal aid provides ordinary people with an essential democratic safeguard and demonstrates the Labour party are comfortable with being held accountable should the need arise.
These are the key reasons why I welcome this move.
Legal aid is a fundamental right and a crucial safeguard in a democratic society. Without equal access to justice, we simply cease to be free.