Monday, 16 March 2015

The Tuesday Truth

This week's Tuesday Truth is by Rhona Friedman, Criminal Solicitor and Co-Founder of the Justice Alliance. Rhona has edited most of the previous Tuesday Truths.

There’s no fun in being a canary called Cassandra 

If someone, Paul Harris say, writes the definitive history of the attritional battle between criminal lawyers, the Coalition Government and the Ministry of Justice,  a short chapter should be devoted to how most of us in our decaying criminal law silos failed to grasp the LASPO horror show , the calamity of all calamities that was about to engulf the civil lawyers who are our friends, business partners, and the people whose name we know but don’t physically recognise at the office Christmas party.    

The Law Society, LAG and LAPG tried to tell us all but we weren’t ready to listen. Civil law; arcane, worthy and lets face it often just a little bit dull could not rouse us from our myopic moaning about falling fees, ever extending bail dates, the bizarre irrationality of the LSC/LAA and the inability of the CPS in an age of wearable IT and intuitive robots to match voice mail addresses with the right person.  The campaign against LASPO never really caught hold of the imagination; no strikes, no puppets, no chanting hordes invading MOJ HQ and little traction in the press.

It is this failure to pay attention at the right time to the right stuff that characterises our age. In a time of seemingly limitless information instead of rooting out the statistics that show that austerity as an economic blue print is not working and can never work, that the ratio of public indebtedness has increased since May 2010 because of our support for the financial sector and that in an era of punitive welfare sanctions, over stretched mental health provision and ever rising rents, homelessness in London has increased by 80% since 2010, and nationally by 55%,. We are, as a society, prone to bamboozlement like crib bound infants, seduced by shiny, shiny distractions, floating and spinning just out of reach.

Now all of those dire warnings from our clued up confr√®res in civil law have come horribly true.  Two reports came out last week. The first Magna Carta today? a joint report by Professor Marjorie Mayo and Dr Gerald Koessl of Goldsmiths and Unite the Union[i]  is as you might expect, academic, politically engaged and name checks Pericles, Thomas Paine and Zygmunt Bauman, so far so unlike a typical MOJ press release.   

Its headline findings are that 623,000 people, 80% of them from the most disadvantaged sections of society have been adversely affected by the legal aid “reforms”.  54% of the benefit claimants who have been affected are thought to have a disability. Women are particularly affected especially those most at risk of domestic violence.

The report tells us that “Legal aid “reform” has been and continues to be wrong headed, vindictively punishing the poor, constituting an assault on democracy.” This may appear too politically partisan for some but step back and consider that “Access to justice has been seen as a fundamental right in Britain from Magna Carta onwards, predating the establishment of legal aid, providing resources to ensure that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right. “ [ii]

We all know someone who is now unable to find advice or fund a lawyer to challenge a bad decision or enforce a right. Frederick Wilmot Smith whose November piece in the London Review of Books[iii] is referred to extensively in Magna Carta today?  writes “The legal system is [   ]  a key means of ensuring that the distribution of the benefits of the welfare system is conducted correctly; if anything, legal aid should be called a foundation, not a pillar, of the welfare state.”   

If legal aid is the bulwark which must be dismantled if the post war settlement and welfarism are themselves to be deliberately dismantled then it is actually a short intellectual joining of the dots to what Wilmot Smith calls the Government’s objective to seek “emancipation from its legal duties” and the conclusion that the assault on access to justice has been deliberately designed and timed to ensure that just as the ideologues shrink the state to a pre war rump under the cover of the austerity scam the ability to ensure legality and procedural fairness in Government decision making has been constrained in an unprecedented way.   

Still not convinced? Well if you want to punitively sanction over half a million benefit claimants but don’t want to deal with the expected glut of appeals then you have to ensure that those affected have no legal right to challenge the decision making process.

If you are still buying into the mantra that we have to cut back to stay afloat then the non evidence based cut first and attempt to justify later approach which MOJ Permanent Secretary Ursula Brennan admitted to in front of the Public Accounts Committee last December doesn’t make any economic sense. As Steve Hynes of the Legal Action Group reported in 2012[iv]  every one pound spent on legal aid advice saves the state six pounds.

Legal Aid cuts do not equal savings as the Justice Committee concluded in last week’s second report on LASPO two years on.[v]  Like the Goldsmith /Unite report, the Committee found that access to justice has been harmed and that  The Ministry of Justice has failed in three of its four objectives for LASPO: it has not discouraged unnecessary and adversarial litigation at public expense because the courts and tribunals are having to meet the costs of a significant rise in litigants in person and a corresponding fall in mediation; it has failed to target legal aid at those who need it most because it has failed to properly implement the exceptional cases funding scheme; and it has failed to prove that it has delivered better overall value for money for the taxpayer because it has no idea at all of the knock-on costs of the legal aid changes to the public purse.”

The only objective which was met was to make a £350m cut but at what overall cost?

 What can we learn from the LASPO debacle?  Listen to the experts, the people in the field. If 20,000 respondents say something is going to be a hideous disaster, doomed to ignominious failure causing generational damage to the whole Criminal Justice system, then that’s not for nothing.  It seems obviously reckless if not perverse to dismiss that evidence as the clamour of the vested interest.  

“We told you so” is the most sterile and redundant retort in the English language. No criminal lawyer who cares about justice and the state of democracy in this country is going to revel in the schadenfreude of system collapse.  We don’t want to be canaries called Cassandra.


[i] Mayo and Koessl  (2015) Magna Carta today?
[ii] Mayo and Koessl p7 and Wilmot Smith  -see below quoting from  the White Paper for the Legal Aid and Advice Act 1949
[iii] Frederick Wilmot Smith · Necessity or Ideology?: Legal Aid · LRB 6 November 2014
[iv] Steve Hynes (2012) Austerity Justice, London: Legal action Group
[v] Justice - Eighth Report
Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

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