On Legal Aid, the Government has abandoned the poor, deserted and addicted
From Brother Ivo:
When Lord Carey ruffled feathers recently with his claim that Britain’s Christians were being marginalised by this country’s 'aggressive secularism', he was rebuked with both judgement and anger. The preponderance of opinion was that, so shortly into the new Primate’s term of office, this was a time for the Church to return to time-honoured themes, whether that be the truth of the resurrection or, as some preferred, the need for justice on a variety of issues.
The latter featured prominently in the complaints, and we could illustrate the criticism with any number of themes which were advanced, from the 'bedroom subsidy' to the new Universal Credit. Both sides on these arguments claim moral rectitude and the ever elusive 'fairness'.
Brother Ivo is pleased to accept the implied invitation to write about justice because his mind enters the new month with a concern for an area of reduction in the Welfare State that few know about and fewer still of the major commentators have any interest in.
Let us first remind ourselves that the Bible takes human justice very seriously indeed. A word search of an online Bible will deliver at least 150 references to the word 'Justice' - some familiar, others less so. And they are spread throughout the books of the Bible from Exodus through the Psalms, via Job and Jeremiah, and from there into the New Testament, from Matthew to Revelation. From this we can safely conclude that we should have absolute confidence that ours is not a God indifferent to the subject and, insofar as He ever moves from the norm of the Law, it is to temper it with mercy. We may be sure of being judged fairly, but with compassion, and there can be little doubt that this is a template which humankind must follow.
We are specifically instructed to pay particular attention to certain groups, notably the poor, the foreigner, the widow and the orphan. Exodus 23:6 tells us: 'Make sure that the poor are given equal justice in court.' Deuteronomy 16;20 reads: 'People of Israel, if you want to enjoy a long and successful life, make sure that everyone is treated with justice in the land the Lord is giving you.' Deuteronomy 10:18 warns: 'The Lord defends the rights of orphans and widows. He cares for foreigners and gives them food and clothing.'
It is plain that God warns us that such groups are at risk of injustice. They are likely to be not only poor, but also politically and socially unconnected. They may be less articulate and disconnected from mainstream society. They are easily dismissed as 'not like us' and their needs overlooked. When caught up in disputes, such groups are jointly at risk of being taken less seriously; their worries perhaps regarded as more trivial than the disputes of the rich.
If the widows mite is more meaningful when generously offered, so her need not to be cheated of it is also proportionately greater. It is therefore all the more distressing, when considering our own judicial priorities, to find these groups have been set one against the other. To understand how, one needs to look at a little history.
Legal Aid was established as part of the post-war Welfare State. Initially it was administered by the Law Society via local voluntary committees of practising lawyers who sifted the cases, assessed financial eligibility and granted public funding to those cases which their collective professional judgement led them to judge as meritorious. Although this imported a degree of discretion and arbitrariness, it had the merit of measuring out scarce public funds towards the more meritorious cases. Not only was there a degree of cost effectiveness, but it proceeded on a deliberately different basis from the NHS approach of 'free to all at the point of delivery'. While there is a public interest in the whole population being healthy, there is plainly no similar interest in it being litigious. Public money was offered to support the litigant, but it was measured out with a degree of caution, and the society into which it was introduced was very different to the one we have today.
Families in the 1950s stayed together, for better or worse: wives had few rights to their husband's property; immigration was controlled at the absolute discretion of the government; welfare law was virtually non-existent; judicial review / administrative law was under-developed. Crime was at a much lower level and workers/accident compensation was a small sector of the legal market.
The system grew because society changed, and so did its budget and administration. Where legal aid offices had once run out of converted terraced houses, some of their present buildings would not disgrace Goldman Sachs. There have become complex bureaucracies administering a £2 billion budget. LSC pension pots can exceed £1.5 million. Yet, paradoxically, its clients have moved steadily away from the old model of ordinary people having access to justice.
By the 1960s we saw divorce reform, consumer rights, and housing and welfare law developing as complex specialisms. While once, most people only visited a solicitor to buy a house or make a will, ready access was given by a modest Legal Aid scheme which encouraged High Street practices to perhaps recruit a young idealistic lawyer to undertake a specialist area 'on the side'. The real money was still made in commercial law, conveyancing and probate. Legal partnerships were relatively small and still closely connected to local communities. Nevertheless, an original scheme that allowed brief advice for the princely sum of ten shillings encouraged people to ask, and those who weren’t eligible often received advice for free as a 'loss leader'.
When the house conveyancing monopoly was broken and conveyancing costs tumbled, firms were less keen to be so relaxed about loss leader advice, but Legal Aid expanded and soon its costs needed to be reduced. Thus it was that Mrs Thatcher began the reforms by introducing 'No Win No Fee'-style litigation from the USA, with results that many still regret. It did, however, ship a large Legal Aid cost off the public balance sheet where it grew to the wider cost of the community.
Politicians, police and judges did not help. Police abuses required all evidence presented to Magistrates Courts to be provided through advance disclosure (previously unheard of and very costly). The theft of a sandwich that once took 20 minutes in court now generated a bureaucratic trial of considerable length. Every arrested person had to be offered solicitor representation free of charge, 24 hours a day.
Since 1948 there have been over 70 public inquiries into child deaths and abuse, alerting us to the need for yet more complex Child Protection legislation. There are many other examples of how the system grew like Topsy. The Financial Services 'Big Bang' then created opportunities for complex fraud on a massive scale, and Legal Aid began to be offered to the Super Rich and their Super Rich lawyers. Do remember Asil Nadir as the story unfolds.
If there was one identified straw which finally broke the camel’s back, it was the 1990s wave of immigration and asylum cases which created a new demand for lawyers and interpreters at a time when the government began to seek ways of reducing the Legal Aid bill, even though it is less than 2% of the NHS budget. Under the Human Rights Act, many cases of immigration and asylum related to 'Absolute Rights' whereas Family Law cases primarily dealt with disputes over 'Qualified Rights' (see HERE). So began a series of reforms which have slowly and effectively removed Family Law Legal Aid from the poor unless there is either a removal of the child by the state or issues of domestic violence.
Brother Ivo is grateful to the firm of Farleys for a succinct explanation of these changes. From 1st April 2013, we are turning against the poor, the deserted, the addicted, and those desperate to maintain contact with their children. They will include some of the most vulnerable people in our society, and we are delivering to them the message: 'You’re on your own pal'. There are over a million people addicted to alcohol, and 300,00 addicted to drugs. They will feature heavily in these cohorts of need.
Family Law has a very distinct character. Most legal disputes relate to a specific and fixed set of facts, which may need to be clarified and addressed, but are largely historic: a car has crashed; a contract has been breached; an assault been alleged. What is to be done about it? In much Family Law, however, the judge has to deal with a dynamic situation: a job has been changed; a child will not go for contact; depression has intervened; has father finally given up drinking? Who will pay for the drugs/alcohol test to prove the point? Family Law has a high degree of relationship management involved. A seemingly logical solution on day one unravels on day 138; an unexpected development changes everything for the good or the ill.
From this first week in April, most couples beset by anger, fear, disappointment, distrust and financial uncertainty will be on their own in this alien and bewildering legal environment. Judges will have courts full of under-prepared distressed people, some suffering a variety of mental health or depressive traits which they do not understand themselves. Woe betide the ordinary litigant who has paid for his day in Court only to find that the preceding cases have over-run and that he/she needs to return another day, paying the legal team for an unproductive day’s waiting.
It will get progressively worse. Judges rely for guidance on officers of Cafcass, and follow their advice in most cases. Changes that have already occurred in Cafcass have already driven out their most experienced officers and their replacements have been recruited with only three years' experience in Social Work. Their work is strictly time-limited and their recommendations and conclusions can be, and are, edited and changed by managing bureaucrats who have never met the couples or children involved.
There are currently many judges who have reached their position having advised, known and sat with the poor as they have coped with life’s tragedies. Their careers have embodied the servant-song ideal:
I will weep when you are weeping;
When you laugh, I'll laugh with you.
I will share your joy and sorrow
Till we've seen this journey through.
Compassionate legal professionalism has helped many a family through difficult times, and the trust that developed with individuals and communities has frequently enabled troubled people to begin to see the wood for the trees. It is a truism that the settlement which is agreed holds whilst that which is imposed frequently implodes and returns to Court.
Not all Judges are equipped to manage litigation by the unrepresented. The current crop of good ones will have come through the ranks understanding in depth the people who will henceforth be arriving under-prepared in Court and vulnerable to judicial bullying. A little tough love is sometimes called for, but when, having to make a judgement of Solomon, it helps if one has the wisdom of Solomon.
Frankly, many of the clones recruited to the Judiciary by the Ministry of Justice bureaucracy will lack the common touch in future years. Since Labour dismantled the old Office of Lord Chancellor, we now have Ministers of Justice who have no experience of the judicial life which countless of their predecessors brought to the role. It will come as little surprise that we are seeing the 1949 ideal of a Legal Aid service for the less well off decimated, so that it now largely excludes the ordinary law-abiding citizen who might once have thought that Legal Aid might have something to do with helping them.
(Posted by Brother Ivo)