Tag: Lord Bach

Conservative welfare “reforms” – the sound of one hand clapping

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“Labour MPs sat perplexed … By cutting housing benefit for the poor, the Government was helping the poor. By causing people to leave their homes, the Government was helping people put a roof over their heads. By appealing the ruling that it discriminated against the vulnerable, the Government was supporting the vulnerable.

Yes, this was a tricky one.” – From an unusually insightful article in the Telegraph about the incoherence of Conservative welfare rhetoric:  How bedroom tax protects the vulnerable.

“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill. Source: Hansard, Column 1557, 19 May, 2011.

Conservative policies are incoherent: they don’t fulfil their stated aims and certainly don’t address public needs. Furthermore, Conservative rhetoric has become completely detached from the experiences of most citizens and their everyday realities.

Under the Equality Act, provision was made by the Labour government to ensure that legislations didn’t discriminate against protected social groups, which included disabled people. However, the need for public bodies in England to undertake or publish an equality impact assessment of government policies, practices and decisions was quietly removed by David Cameron in April 2011. The legal requirement in the Equality Act that ensured public bodies attempt to reduce inequalities caused by socio-economic factors was also scrapped by Theresa May in November 2010, who said she favoured a greater focus on “fairness” rather than “equality.”

The Conservatives have since claimed to make welfare provision “fair” by introducing substantial cuts to benefits and introducing severe conditionality requirements regarding eligibility to social security, including the frequent use of extremely punitive benefit sanctions as a means of “changing behaviours,” highlighting plainly that the Conservatives regard unemployment and disability as some kind of personal deficit on the part of those who are, in reality, simply casualties of unfortunate circumstances, bad political decision-making and subsequent politically-constructed socio-economic circumstances.

The word “fair” originally meant “treating people equally without favouritism or discrimination, without cheating or trying to achieve unjust advantage.” Under the Conservatives, we have witnessed a manipulated semantic shift, “fair” has become a Glittering Generality – part of a lexicon of propaganda that simply props up Tory ideology in an endlessly erroneous and self-referential way. Conservative ideology is permeating language, prompting semantic shifts towards bland descriptors which mask power and class relations, coercive state actions and political intentions. One only need to look at the context in which the government use words like “fair”, “support”, “help”, “justice” , “equality” and “reform” to recognise linguistic behaviourism in action. Or if you prefer, Orwellian doublespeak.

The altered semantics clearly signpost an intentionally misleading Conservative narrative, constructed on the basic, offensive idea that people claiming welfare do so because of “faulty” personal characteristics, and that welfare creates problems, rather than it being an essential mechanism aimed at alleviating poverty, extending social and economic support and opportunities – social insurance and security when people need it.

The government claims to be “committed to supporting the most vulnerable” and ensuring “everyone contributes to reducing the deficit, and where those with the most contribute the most.” That is blatantly untrue, as we can see from just a glance at Conservative policies.

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Conservative rhetoric is a masterpiece of stapled together soundbites and meaningless glittering generalities. And intentional mystification. Glittering Generalities are being used to mask political acts of discrimination.

Cameron claims that he is going to address “inequality” and “social problems”, for example, but wouldn’t you think that he would have done so over the past five years, rather than busying himself creating those problems via policies? Under Cameron’s government, we have become the most unequal country in the European Union, even the USA, home of the founding fathers of neoliberalism, is less divided by wealth and income, than the UK.

I’m also wondering how tripling university tuition fees, removing bursaries and maintainance grants for students from poorer backgrounds and reintroducing banding in classrooms can possibly indicate a party genuinely interested in extending “equal opportunities.”

It’s perplexing that a government claiming itself to be “economically competent” can possibly attempt to justify spending more tax payers money on appealing a Supreme Court decision that the bedroom tax policy is discriminatory, when it would actually cost less implementing the legal recommendations of the court. As Owen Smith, Shadow Work and Pensions Secretary, said: “Just the Supreme Court session itself will cost the Government more in legal fees than the £200,000 needed to exempt domestic abuse victims affected.

“If the Tories had an ounce of decency they could have stood by the decision and exempted the two groups.

“Instead they are instructing expensive lawyers to fight in the Supreme Court for the right to drive people further into poverty.”

As a consequence of the highly discriminatory and blatantly class-contingent Tory policies, rampant socio-economic inequality apparently is the new Tory “fair”. There is a clear incongruence between Conservative rhetoric and the impact of their policies. This is further highlighted by the fact that the UK is currently being investigated by the United Nations regarding serious contraventions of the human rights of sick and disabled people, and other marginalised groups, because of the dire impact of Conservative welfare “reforms.”

It’s clear that the austerity cuts which target the poorest are intentional, ideologically-driven decisions, taken within a context of other available choices and humane options.

The rise in the need for food banks in the UK, amongst both the working and non-working poor, over the past five years and the return of absolute poverty, not seen since before the advent of the welfare state in this country, makes a mockery of government claims that it supports the most vulnerable.

Income tax receipts to the Treasury have fallen because those able to pay the most are being steadily exempted from social responsibility, and wages for many of the poorer citizens have fallen, whilst the cost of living has risen significantly over this past five years.

The ideologically motivated transfer of funds from the poorest half of the country to the more affluent has not contributed to deficit reduction. It doesn’t take a genius to work out that the cumulative impact of Tory tax and welfare changes, from out-of-work and in-work benefits to council tax support, to the cut in the top rate of income tax and an increase in tax-free personal allowances, has been extremely regressive and detrimental to the poorest.

The revenue gains from the tax changes and benefit cuts were offset by the cost of tax reductions, particularly the increase in the income tax personal allowance, benefitting the wealthiest.

The Treasury response to this is to single out the poorest yet again for more cuts to “balance the books” – which basically translates as the Conservative “small state” fetish, and deep dislike of the gains we made from the post-war settlement. Yet for a government that claims a non-interventionist stance, it sure does make a lot of interventions. Always on behalf of the privileged class, with policies benefitting only the wealthy minority.

How can Conservatives believe that poor people are motivated to work harder by taking money from them, yet also apparently believe that wealthy people are motivated by giving them more money? This is not “behavioural science,” it’s policy-making founded entirely on traditional Tory prejudices.

The government claim that “Every individual policy change is carefully considered, including looking at the effect on disabled people in line with legal obligations,” but without carrying out a cumulative impact assessment, the effects and impacts of policies can’t possibly be accurately measured. And that is intentional, too.

Despite being a party that claims to support “hard-working families,” the Conservatives have nonetheless made several attempts to undermine the income security of a signifant proportion of that group of citizens recently. Their proposed tax credit cuts, designed to creep through parliament in the form of secondary legislation, which tends to exempt it from meaningful debate and amendment in the Commons, was halted only because the House of Lords have been paying attention to the game.

The use of secondary legislation has risen at an unprecedented rate, reaching an extraordinary level since 2010, and it’s increased use is to ensure that the Government meet with little scrutiny and challenge in the House of Commons when they attempt to push through controversial and unpopular, ideologically-driven legislation.

Conservative cuts are most often applied by stealth, using statutory instruments. This indicates a government that is well aware that its policies are not fit for purpose.

We can’t afford Conservative ideological indulgence.

The National Audit Office (NAO) scrutinises public spending for Parliament and is independent of government. An audit report earlier this month concluded that the Department for Work and Pension’s spending on contracts for disability benefit assessments is expected to double in 2016/17 compared with 2014/15. The government’s flagship welfare-cut scheme will be actually spending more money on the assessments themselves than it is saving in reductions to the benefits bill – as Frances Ryan pointed out in the Guardian, it’s the political equivalent of burning bundles of £50 notes.

The report also states that only half of all the doctors and nurses hired by Maximus – the US outsourcing company brought in by the Department for Work and Pensions to carry out the assessments – had even completed their training.

The NAO report summarises:

5.5
Million assessments completed in five years up to March 2015

65%
Estimated increase in cost per ESA assessment based on published information after transfer of the service in 2015 (from £115 to £190)


84%
Estimated increase in healthcare professionals across contracts from 2,200 in May 2015 to 4,050 November 2016

£1.6bn
Estimated cost of contracted-out health and disability assessments over three years, 2015 to 2018

£0.4 billion
Latest expected reduction in annual disability benefit spending

13%
Proportion of ESA and PIP targets met for assessment report quality meeting contractual standard (September 2014 to August 2015).

This summary reflects staggering and deliberate economic incompetence, a flagrant, politically-motivated waste of tax payers money and even worse, the higher spending has not created a competent or ethical assessment framework, nor is it improving the lives of sick and disabled people.

The government claim they want to “help” sick and disabled people into work, but nearly 14,000 disabled people have lost their mobility vehicle after the changes to Personal Independence Payments (PIP) assessment, which are carried out by private companies. Many more, yet to be reassessed, are also likely to lose their specialised vehicles.

In 2012, Esther McVey revealed that the new PIP  was about cutting costs and that there were targets to reduce the number of successful claims when she told the House of Commons:330,000 of claimants are expected to either lose their benefit altogether or see their payments reduced.How else could she have known that before those people were actually assessed? A recent review led the government to conclude that PIP doesn’t currently fulfil the original policy intent, which was to cut costs and “target” the benefit to “those with the greatest need.”

That basically meant a narrowing of eligibility criteria for people formerly claiming Disability Living Allowance, increasing the number of reassessments required, and limiting the number of successful claims. The government have used the review to attempt to justify further restrictions to PIP eligibility, aimed at cutting support for people who require aids to meet fundamental needs such as preparing food, dressing, basic and essential personal care and managing incontinence. “Greatest need” has become an ever-shrinking category under Conservative austerity measures. 

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The use of political pseudo-psychological “diagnoses” to both stigmatise and “treat” what are generally regarded by the Conservatives as deviant behaviours from cognitively incompetent citizens, infering that the problem lies within the individual rather than in their circumstances, or arise as a consequence of political decision-making and socio-economic models, has become the new normal. We are discussing people here who have been deemed too ill to work by their own doctor AND the state. Not for the first time, the words Arbeit macht frei spring to mind.

Welfare has been redefined: it is preoccupied with assumptions about and modification of the behaviour and character of recipients rather than with the alleviation of poverty and ensuring economic and social wellbeing.

The stigmatisation of people needing benefits is designed purposefully to displace public sympathy for the poor, and to generate moral outrage, which is then used to further justify the steady dismantling of the welfare state.

It is the human costs that are particularly distressing, and in a wealthy, first world liberal democracy, such draconian policies ought to be untenable. Some people are dying after being wrongly assessed as “fit for work” and having their lifeline benefits brutally withdrawn. Maximus is certainly not helping the government to serve even the most basic needs of sick and disabled people.

However, Maximus is serving the needs of a “small state” doctrinaire neoliberal government. The Conservatives are systematically dismantling the UK’s social security system, not because there is an empirically justifiable reason or economic need to do so, but because the government has purely ideological, anticollectivist prescriptions. Those prescriptions are costing the UK in terms of the economy, but MUCH worse, it is costing us in terms of our decent, collective, civilised response to people experiencing difficult circumstances through no fault of their own; it’s costing the most vulnerable citizens their wellbeing and unforgivably, it is also costing precious human lives.

It’s not just that Conservative rhetoric is incoherent and incongruent with the realities created by their policies. Policy-making has become increasingly detached from public needs and instead, it is being directed at “incentivising” and “changing behaviours” of citizens to meet a rigidly ideological state agenda. That turns democracy completely on its head. There is no longer a genuine dialogue between government and citizens, only a diversionary and oppressive state monologue.

And it’s the sound of one hand clapping.

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There are many ways of destroying people’s lives, not all of them are obvious. Taking away people’s means of meeting basic survival needs, such as money for food, fuel and shelter – which are the bare essentials that benefits were originally calculated to cover – invariably increases the likelihood that they will die. The people most adversely and immediately affected are those who have additional needs for support.

The moment that sick and disabled people were defined as a “burden on the state” by the government, we began climbing Allport’s Ladder of Prejudice.

Whilst I am very aware that we need take care not to trivialise the terrible events of  world war 2 and Nazi Germany by making casual comparisons, there are some clear and important parallels on a socio-political level and a psycho-social one, that I feel are crucially important to recognise.

Gordon Allport studied the psychological and social processes that create a society’s progression from prejudice and discrimination to genocide. In his research of how the Holocaust happened, he describes socio-political processes that foster increasing social prejudice and discrimination and he demonstrates how the unthinkable becomes acceptable: it happens incrementally, because of a steady erosion of our moral and rational boundaries, and propaganda-driven changes in our attitudes towards “others” that advances culturally, by almost inscrutable degrees.

The process always begins with the political scapegoating and systematic dehumanisation of a social group and with ideologies that identify that group as an “enemy” or a social “burden” in some way. A history of devaluation of the group that becomes the target, authoritarian culture, and the passivity of internal and external witnesses (bystanders) all contribute to the probability that violence against that group will develop, and ultimately, if the process is allowed to continue evolving, genocide.

If you think this observation is “extreme” then you really haven’t been paying attention. By 2012, hate crime incidents against disabled people had risen to be the highest ever recorded. By 2015, there was a further 41 per cent rise in disability hate crime. This is the so-called “civilised” first world, very wealthy liberal democracy that is the UK.

Most disabled people have worked, contributed to society, paid taxes and national insurance. Those that haven’t genuinely cannot work, and as a decent, civilised society, we should support them. Being ill and disabled is not a “lifestyle choice.” Unfortunately it can happen to anyone. A life-changing accident or illness doesn’t only happen to others: no-one is exempted from such a possibility. That this government thinks it can get away with peddling utter nonsense about the characters, lives and motivations of a marginalised social group, dehumanising them, directing hatred, resentment, prejudice and public derision towards them, demonstrates only too well just how far we have moved away from being a decent, civilised society. 

It seems to be almost weekly that there’s a report in the media about a sick and disabled person dying after being told by the state that they are “fit for work” and their lifeline benefits have been halted, or because the state has sanctioned someone and withdrawn their only support. There are many thousands more suffering in silence, fearful and just about living.

 

The Labour Party tells David Cameron to abandon plans to dismantle the Human Rights Act

936319_485819054820961_1954794757_nA group of senior Labour Party figures have said that David Cameron should drop his plans to dismantle the Human Rights Act.

In a joint letter, headed by acting leader Harriet Harman and Lord Falconer, the Shadow Secretary of State for Justice, the Prime Minister is asked to abandon his plans to scrap the Act entirely.

Harriet Harman said: “What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act.

“No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.”

The Human Rights Act is a UK law passed by the Labour government in 1998. It means that you can defend your rights in the UK courts, instead of having to travel to Strasbourg – and that public organisations, including the Government, the Police and local councils, must treat everyone equally, with fairness, dignity and respect.

The Human Rights Act protects all of us – young, old, rich and poor. It originates from an international response to the atrocities of World War Two, including the Holocaust and fascist regimes. The Human Rights Act consolidates much of the United Nations Declaration of Human Rights, 1948.

The whole point of Human Rights is that they are universal. Yet despite this, the Government wants to replace our Human Rights Act with their “British Bill of Rights and Responsibilities”. This would weaken everyone’s rights, they would become open to subjective interpretation – leaving politicians to decide when our fundamental freedoms should and should not apply.

This is the same Conservative Party who despise open justice, who have destroyed legal aid and tried to destroy Judicial Review. This is the same Party that thinks they are above the Rule of Law. It is the same Party that has systematically dismissed the Human Rights of disabled people, women and children.

The letter to David Cameron says:

Dear Prime Minister

As you are aware, this year is the 800th anniversary of the signing of Magna Carta, a year to celebrate Britain’s role as a guarantor of individual rights. Yet, as we celebrate this great landmark, the commitment to individual human rights now appears to be under threat.

The Universal Declaration of Human Rights – adopted in 1948 – which Conservative politicians contributed to – enshrines:

  • The right to life, liberty and security
  • The right to a fair trial
  • Protection from torture
  • Freedom of thought, conscience, religion, speech and assembly
  • The right to free elections
  • The right not to be discriminated against

Which of these rights do you not agree with?

Defending the Human Rights Act and our membership of the European Convention on Human Rights is not straightforward because it often involves defending the rights of an unworthy individual from a legitimate authority, or the rights of an unpopular minority from a popular majority.

The Human Rights Act is always going to be a nuisance to those in power because it stops them getting on and doing things unconstrained. But there is an inherent susceptibility for those who have power to extend it, to over-reach and ultimately abuse it. And that is irrespective of how legitimate that power is, how they acquired that power and whether or not they think they are doing the right thing.

So it is right that government ministers should have to look over their shoulder and that their power is tempered by other people’s rights. And we do need to have our executive and our legislature set within a framework of human rights.

This is important to people’s human rights here in Britain and for the human rights of those in other countries. If we were to walk away from our international human rights treaty obligations, we would not be able to press other countries to respect human rights. We cannot say to others in Europe – particularly Eastern Europe – that they should stay within a European framework but that we have somehow outgrown it, or don’t need it anymore.

Human rights are part of, not at variance with, our British values and they matter for our place in the world.

We understand you have put your plans on hold for a year, while you work out exactly how you will go about the dismantling of our human rights laws.

We ask you today to abandon your plans entirely, and as a result of the public interest in this issue, will be releasing this letter to the media.”

It is signed by the Rt Hon Harriet Harman MP, Interim Leader of the Labour Party, and the Rt Hon Lord Charles Falconer QC, Shadow Lord Chancellor and Shadow Secretary of State for Justice.

The letter is also signed by Andy Slaughter, shadow minister for justice, Lord Bach, shadow attorney general, Karl Turner, shadow solicitor general, Keir Starmer MP, Baroness Corston, former chair of the Joint Committee on Human Rights, Baroness Kennedy QC and Kate O’Rourke, chairman of the Society of Labour Lawyers.

Related:

A strong case for the Human Rights Act

Human rights are the bedrock of democracy, which the Tories have imperiled.

15553155399_94869b2dcd_oMany thanks to Rob Livingstone for his excellent memes

 

Lord Bach: Civil Legal Aid – a disaster area?

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Legal aid is a welfare provision for people who could otherwise not afford counsel from the legal system. Legal aid was originally established by the Legal Aid and Advice Act, 1949.

Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. Article 7 of the Universal Declaration of Human Rights says that: “All are equal before the law and are entitled without any discrimination to equal protection of the law.”

The United Nations state that this principle is particularly important to minorities and to the poor.

Everyone must be treated equally under the law regardless of their race, gender, national origin, color, ethnicity, religion, disability, or other characteristics, without privilege, discrimination, or bias.

Labour peer Lord Bach has accused the previous of Government of jeopardising social welfare through changes made to legal aid entitlement and has urged ministers to review the legislation.

This article was originally published on PoliticsHome on June 10, reproduced here with thanks:

Part 1 of LASPO has been in force for two years. In that time, many of our most vulnerable citizens have been unable to receive legal advice and assistance to help them with problems in areas of housing, debt, employment, immigration, and welfare benefits. Not only have they been deprived access to justice, but these problems are now being allowed the opportunity to escalate leading to possible greater costs when the state has to intervene. On top of this, eleven law centres have had to close, making it even more difficult for the poorest to get justice, and providers of social welfare law have declined in numbers, as without legal aid, both law centres and solicitors firms have been deprived of a large amount of income.

Two recent reports – one from the House of Commons Justice Select Committee, the other from the Public Accounts Committee – have carefully described the failings of the LASPO Act in convincing terms. The government is yet to indicate when it will respond to these reports. This was legislation which even the Permanent Secretary at Ministry of Justice conceded began without the usual preliminary research being done. It was just a way to save money and damn the consequences. Unfortunately the consequences are deadly serious for citizens, for providers and not least for the reputation of the English legal system.

It is time for a thorough review. My question in the Lords today will urge Ministers to instigate this at once. The ‘exceptional cases’ provision which was supposed to pick up cases that should receive legal aid but couldn’t because of the Act has failed miserably. The Minister of Justice estimate regarding how many exceptional cases there would be has proved laughably high.

Perhaps most disturbing of all is that in those few areas where legal aid is still available under the Act, the take-up has been decreasing.

This is nothing to do with lack of demand for advice. But with people just not knowing that support is still available. The Minister of Justices’ overall savings in this field have also exceeded expectation. Surely it is time to put some of that money back into helping people at a difficult time in their lives?

Social Welfare Law has moved a long way towards being destroyed. It is now time for the government to take stock and begin to restore what was only a few years ago one of the jewels in the crown of English Justice.


Related

Children are being denied justice and their human rights by legal aid cuts

Devastating blow to Grayling as judges halt his legal aid reform

The coming tyranny and the Legal Aid bill

The government’s Legal Aid cuts are leaving vulnerable people with nowhere to turn

7005_494073677328832_658777491_n (1)Pictures courtesy of Robert Livingstone.

Access to justice is the foundation of democracy

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Legal Aid and Advice Act 1949 was a British Act of Parliament which extended the welfare state to ensure that those unable to pay for a solicitor were able to access free legal help. It was designed and implemented to allow poor and vulnerable people to have a genuine access to justice, and was a key part of our post war settlement.

Massive funding reductions, implemented through the contested and controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LAPSO) removed in one fell swoop public funding for huge and crucial areas of civil work – including welfare benefits, debt, immigration, domestic violence, clinical negligence, employment rights and most housing. What this means in basic terms is the poor have no access to justice, and at a time when government is relentlessly encroaching on poor people’s freedoms and rights.

The Legal Aid Bill has been cumulatively devastating to the provision of legal services and is a savage attack on one of our fundamental constitutional principles – it seriously undermines the rule of law.  The government is ensuring that those affected the most by their draconian policies are unable to challenge government decisions. It’s now very difficult to get advice and representation, and judicial reviews are being stifled as a consequence. Yet the number of judicial reviews involving government departments has almost doubled since 2010, the government has revealed. It’s increased by 92%.

The figures were revealed in the same week that the House of Lords thwarted the government’s attempt to restrict judicial review. In particular, peers voted down Ministry of Justice attempts to create a presumption that those who apply to the court to intervene in a judicial review case should have to pay their own costs. Cameron has made it clear that he regards judicial reviews, audits, consultations, impact assessments and other democratic mechanisms that ensure government transparency, accountability, and serve as safeguards of our human rights, as “barriers to getting things done.”

Cameron has confirmed that he wants civil servants to stop conducting routine equality impact assessments for legislation, which assess the likely effect of new policies on women, disabled people and people from ethnic minorities, and to end cumbersome 12-week public consultations that delayed ministers from pressing ahead with their plans. He said that such safeguards to the rights of protected groups are  “bureaucratic rubbish”.

The legal aid “reform” was introduced at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking justice and redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same vulnerable citizens, to their detriment, over and over.

As a former barrister at Tooks chambers, Emily Thornberry MP has condemned the closure of the “exceptional set”: “We were the chambers of the Guildford Four, the Birmingham Six, the Lawrence family… and we have closed because of the legal aid cuts. But this isn’t just about lawyers. The legal aid system has to begin with the vulnerable; ensuring people get a voice and access to justice, and ensuring that our legal system contains the checks and balances that we need in a democratic society.”

Thornberry, speaking last year to a packed conference in a Brighton, criticised the government for the ideological nature of the cuts it has introduced – and in particular, the attack on judicial review. She said:

“The government doesn’t want to be held accountable in the courts so they’re making it harder for people to judicially review them.  Nobody wants to be judicially reviewed, but it goes with the territory.  It’s important for people to be able to hold the government to account in the courts.”

The legal aid bill was defeated 14 times in the House of Lords and ultimately passed after a tied vote. Services and individuals feeling the impact are currently giving evidence to the House of Commons justice committee. The Equality and Human Rights Commission had warned in 2012 that: reducing the scope of legal aid in a number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).   

This is a government that clearly cares nothing for being held accountable for its actions, for public scrutiny and critical debate, and for justice and human rights. In fact since 2010, they have steadily eroded all of these crucial safeguards and democratic criteria through the implementation of policies that are extremely authoritarian and discriminatory.

It’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty.  Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a so-called free, democratic country.

Such profoundly unjust legislated inequality is not something we expect to see in a country which was once a beacon of Western liberty. The State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it.

If the State fails to fulfil this contingent function, then we simply cease to be free.

7005_494073677328832_658777491_n (1)Picures courtesy of Robert Livingstone

 


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The Coming Tyranny and the Legal Aid Bill.

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Ministry of Justice’s “reforms” (Tory-speak for cuts) to legal aid undermine the fundamental principle of legal equality and violate Article 6(1of the European Convention of Human Rights: the right to a fair trial. They reflect a truly authoritarian agenda of legislative tyranny: the reforms effectively remove legal access for many, crucially that access ultimately safeguards individual liberty against intrusion by the State, and protects us from despotic abuses of authority.

The cuts will seriously undermine access to justice and sidestep the obligation of Government accountability. The cuts will affect the most disadvantaged and vulnerable in society and allow unlawful and unfair public body decision-making to go unchallenged.

The Equality and Human Rights Commission’s analysis in 2012 warned that reducing the scope of legal aid in a substantial number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).

 

The cuts to the civil legal aid budget, which came in to effect from April 2013, mean many cases, including those about debt, private family law, employment, welfare benefits, clinical negligence and housing problems are no longer eligible for funding.

This is at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same group of citizens, to their detriment, over and over.

This sends out a truly worrying message to those of us who believed we lived in a first world liberal democracy  (one that has recognition of  individual rights and freedoms embedded in its Constitution, and one in which decisions from direct or representative processes prevail in State policies.) The promotion of equal opportunity to legal justice is the bedrock of a free and democratic society. It ought to be inclusive of all who cannot afford to be tried fairly. The reality is only a few can afford the legal costs to enforce contracts and against criminal prosecution. This profoundly unjust inequality is not something we expect to see in a Country which was once a beacon of Western liberty.

Even if we were to take a Conservative perspective, it’s still the case that the only way to wed the principle of a “pursuit of economic liberty” with wider justice is by a basic notion of equality before the law, through the equal access to justice. This means that the State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it. If the State fails to fulfil this contingent function, then we simply cease to be free.

“Legal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where people’s life or liberty is at stake or the loss of their home. But in cases like divorce, courts should be a last resort, not first. Evidence shows that mediation can often be more successful and less expensive for all involved.”  –  Chris Grayling.

Section 10 of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) provides the new Director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the Director for an ‘exceptional case determination’.

Section 10(3) of LASPO states that an exceptional case determination is a determination:
a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of:

1) the individual’s convention rights (within the meaning of the Human Rights Act 1998), or
2) any rights of the individual to the provision of legal services that are enforceable EU rights, or
b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

This misses a very crucial point: it’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty. Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a free, democratic and liberal country.

Having cut the civil legal aid budget by £320m, the Ministry of Justice proposes to cut the criminal legal aid budget by a further £220m. Legal contracts are to be based on competitive tendering. One of the outcomes of the reform and cut to the budget is that defendants on legal aid will no longer be offered a choice of solicitor.

One of the most unfair aspects of this system is that if you are charged, the State will select a prosecutor with specialist experience in that area of the law, funded by the taxpayer. Be it a sexual offences case, a road traffic death, a murder, a drugs case or a serious assault, in each case, a prosecutor will be picked to prosecute you from a specialist team.

But when it comes to your defending yourself, however, you will be given no choice. You will either have the defence lawyer allocated by the State or you will be on your own. This cannot be right. Many legal experts have voiced their alarm at this, because it will  invariably lead to gross injustices.

Large commercial firms who are going to be paid, win or lose, will have a vested interest to encourage their clients to plead guilty, whether they are or not. At a time when people are at their most vulnerable they need a local service that listens, not a business, whose goal will be to turn around the case as fast and cheaply as possible.

The scope for dangerous consequences due to vested interests in the justice system following Justice Secretary Chris Grayling’s “reforms” is considerable, and allows potential for further erosion of legal freedom. In some cases,  the sole choice of lawyer for a defendant via legal aid will also be a representative for the organisation with an interest in ensuring a prosecution. The  tendering process – where the cheapest bid wins – would be run by companies with no record of providing legal services, resulting in a dumbing down of the profession and a race to the bottom that will mean citizens being denied access to quality legal aid.

As is always the case when private companies that are driven solely by the profit motive are involved in any service, cases will be run on the cheap by under-qualified, inexperienced, low-cost staff. The company Serco, for example, provides prison security guards. Serco is one company bidding for the legal contracts with the Legal Aid Agency. The Department of Justice has proposed to remove defendants’ automatic right to select their own solicitors to make the contracts to bidders more profitable.

I have no doubt that the Coalition wants to see access to justice removed for those affected by its nightmarish, dystopian policies. Those people affected most of all are some of our most vulnerable citizens, as the cuts have been disproportionately aimed at the poorest, at sick and disabled people, and those who are unemployed. Injustice increases and extends vulnerability, especially for those groups of people already experiencing marginalisation.

We need look no further than Clause 99 of the welfare “reform” Act to see how silencing those seeking redress is a priority for this Government. This is also about hiding the evidence of the dire consequences of the “reforms”, since large numbers of successful appeal outcomes highlight, for example, that the Work Capability Assessment (WCA) is grossly unfair and widely inaccurate. Yet despite almost 11,000 deaths, many of which have been attributed to the stress of the assessment process itself, and to people being wrongfully assessed, the Government have not even instigated an inquiry into the WCA. Had an auto-mobile been associated with such a high number of deaths, it would have been withdrawn. Yet we still have the WCA, and incredibly, no willingness for an investigation from our perennially indifferent Tory-led Government.

Those wishing to appeal wrongful decisions by Atos/The Department of Work and Pensions (DWP) that they are “fit for work” after having their Employment Support Allowance (ESA) unfairly  removed will find that this will be an almost impossible task, since their right to legal aid has been removed. The introduction of the  Mandatory Review in Clause 99 will mean that they have to wait an indefinite period without any ESA sickness benefit, or claim Job Seekers Allowance (JSA), whilst waiting for the DWP to conduct the review, with no time limit imposed on the DWP to do so.

That means signing on and declaring that you are fit  for work, and people are being told by the DWP, unbelievably, that they don’t qualify because they are not fit, or fully available for work. Others have been told that to claim JSA they need to close their ESA claim which means they cannot appeal a review decision. Basic rate ESA is exactly the same amount of money as JSA, so the Government cannot even claim this is a cost-cutting move.

And we also know that Atos are contracted by the Government to make “wrongful” decisions. 

The right to a lawyer of a persons’ choice, regardless of your income, race, gender or nationality, is an underpinning condition of a free and fair justice system. Having both a sense of, and access to choice over one’s legal representative, who is there to fight for justice is paramount to basic legal equality and liberty. When this choice is removed and legal representation is essentially imposed on a passive defendant by the State (if a defendant can still access legal aid at all, that is,) our justice system becomes unacceptably authoritarian.

And it has.

Further reading:

Guidance on the exceptional funding regime

The Public Law Project scheme to assist people with making exceptional funding applications

Government lawyers warn Justice Secretary Chris Grayling over proposed ‘unconscionable’ changes to legal aid

Cutting Legal Aid – the surest way to threaten Justice 

John Finnemore on The Now Show, discussing the injustice of the Legal Aid Bill

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Update – In response to this article, a statement has been issued from the International Human Rights Commission, who say: “The IHRC strongly condemned the Bill and asked the UK Government to consider this action, which is against the norm of human rights”.

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Pictures courtesy of Robert Livingstone

 


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