Monday, May 04, 2015

Equality and the law

One of the basic principles of liberal democracy is equality before the law. At a bare minimum it insists that the law applies equally to all citizens. Though true in theory, the practice is different if people do not have access to advice and representation to find their way through the complexities, to understand their rights, and to have someone to articulate their case on their behalf in ways that the inexpert might find difficult. If the barrier to obtaining representation is money, then this fundamental democratic principle is undermined, confining justice to the wealthy. This is the whole rationale behind legal aid and local authority funded law centres. And this is also why the cuts to the system is a national scandal that has gone virtually unnoticed.

The Conservative Party's approach to public services is a curious one. The standard complaint of "marketisation" is raised at every turn as if the struggle is between free-market ideologues and those who feel that there are areas that should be immune from market competition. But in legal aid, as in other areas, this is not what the Tories are doing. They are actually reducing competition in favour of issuing a smaller number of state-approved contracts, limiting the choice of clients. And by doing so, they are bureaucratising what was a relatively simple system, restricting its availability and increasing its cost to the user.

Legal aid is not a sexy political area and lawyers are not an appealing political cause, unless you realise that nobody goes into criminal law for the money - where pay is poor and commitment high - or if your luck runs out and you find that you join the minority of people who need legal help. It has been absent from the election campaign until recently when an open letter to the Guardian tried to raise the issue. It is worth quoting from it at length.

In 2010, annual expenditure for the civil and criminal justice system stood at approximately £2bn per annum, which equates to the cost of running the NHS for a fortnight. Spending was falling and was not spiralling out of control. Now, after two years of an unprecedented programme of cuts, the level of spending is down to approximately £1.5bn per annum. The effect of the cuts is reflected in eye-watering statistics. From 2012-13 to 2013-14, debt cases fell from 81,792 to 2,423 and in clinical negligence from 2,859 to 114. In employment law, legally aided cases fell from 16,154 to six in the same period. The huge increase in employment tribunal fees has meant that people without deep pockets have little to no protection against unscrupulous employers. We know that cuts disproportionately affect women and, sure enough, the government’s own figures show an 80% drop in the number of women taking employment cases to tribunal. Funding in family law cases dropped by 60%, causing a predicted rise in unrepresented defendants, a trend now also starting to be seen in the criminal courts.

What the figures do not convey is the sheer human misery of being unable to get legal advice. GPs report a large increase in the number of patients who would have been assisted by advice on benefits, employment, debts and housing. Cuts to legal aid are literally making people sick.
To its credit, Labour has responded, but my how cautiously. It is promising to make it easier to get legal aid for victims of domestic abuse. On the radical upheaval of the system, it is silent. And here we see another problem. Labour only feels it can act where the recipient is uncontentiously deserving. It is a further sign of the erosion of the basic principle of universality towards the provision of services based on the idea of moral worth.

If conventional moral sanctimony is the determinant of support, it is hardly surprising that criminal law defendants are an easy target. But this is the whole point of universality. Access to a service is there irrespective of moral judgement. It is based on a different concept of justice. And in doing so it stands the best chance of reaching everyone who needs it. Once discretion enters into the equation, services go to those best able to negotiate the system. And what that usually means is that the people who need them most miss out.

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