There's a joke that you can tell there's a recession because the Government is cutting legal aid along with everything else, and a boom because the Government is just cutting legal aid. There's a sad truth in this - legal aid spending has been the subject of successive and relentless waves of cost-cutting across governments and budgets. It has already been cut down to the bone - with some of these cuts so recent and substantial their full effects have yet to be fully appreciated. But if there is a picture emerging, it is one which should be generating widespread public concern, if not anger.
Legal aid is there to make sure that people can get justice even when they do not have the financial means to pay for it. It is based on the principle that the law should apply to all (and protect all) equally.
No sooner had the Government announced its recent proposals for significant changes to legal aid and Judicial Review, than the clear intention to rush them through Parliament (without a proper debate) became apparent. But even despite this haste, the proposals have met with widespread concern, and from significant quarters too - the head of the Supreme Court, Lord Neuberger, MPs from across all of the major parties, and even the Government's own lawyers, who described the proposals as being 'unconscionable'.
I am a founding member of the campaigning group Save Justice and we (along with many others) are deeply concerned that the Government's proposals, if enacted, would amount to a withdrawal of a vital lifeline from the very people who have the greatest need of the protection of the law. After all, legal aid is often the very last resort for those who are the most vulnerable and at times when they find themselves in a crisis.
~ The Proposals to Change Legal Aid & Judicial Review
The proposals are detailed, wide-reaching and complex. Just some of the areas of concern are: changes to Judicial Review, the creation of a so called 'residence test', and plans to bring in huge cuts to the funding for criminal legal aid.
By limiting the opportunity to make applications for Judicial Review, the Government is removing the means by which ordinary people use the Courts to challenge the Government and keep it in check.
For instance, where powerful State bodies (such as the police) have failed to follow the law it is often only via Judicial Review that they could be challenged and held to account. By removing access to such challenges the Government is reducing the level of independent scrutiny of decisions it makes.
By introducing the 'residence test', anyone who can't prove they've had 12 months' lawful residence in the UK (and can't prove they're lawfully resident at the time), wouldn't be able to get a legal aid lawyer to help enforce any civil rights. This 'test' will create an underclass of people - pushing them outside the protection of the law. Many consider that this sets a dangerous constitutional precedent - who is next to be excluded from the rule of law?
Under these proposals, people such as torture survivors, children and trafficking victims would have no means of bringing legal challenges to delays in the provision of status papers or, in the year before the residence test is met, to secure access to their entitlements to welfare, housing and community support. The level of destitution and homelessness during this time will worsen, with a significant impact on short and long term rehabilitation.
The plans will also mean that those held unlawfully in detention, will not be able to bring claims for compensation and redress (which many consider to be the only restraining influence on the Government practice of immigration detention). Under these proposals, the recent case which unearthed serious sexual abuse by staff at Yarls Wood presents a good example of the kind of case which would not even make it as far as a Court room.
It's already been shown that many legal aid criminal lawyers are already earning significantly less than most teachers and doctors. By cutting the fees for all criminal legal aid it is inevitable that large swathes of specialist criminal lawyers will just go out of business. The proposed changes have been described by widely respected criminal barristers as potentially causing 'irreparable harm' to the Criminal Justice system. This will mean an increase in miscarriages of justice - i.e. innocent people being convicted of crimes that they did not commit.
We do not consider that these proposals are what the UK needs, nor what the British people want. They are unlikely to make the savings claimed and in fact would appear to cost much more money than they would save.
As Mike Fordham QC put it at a demonstration we organized on the 4 June 2013:
Legal Aid ...is the beating heart of the rule of law...we have to defend the beating heart of the rule of law. Because what could matter more than those who are disadvantaged, and those who are marginalized, having effective legal protection? Because, you know, if the State is up against you, they will have the lawyers they choose, every time. But what about you? When you are being prosecuted, or when you are having your rights taken away, or when you are in detention?
Save Justice are calling for all to stand in support of legal aid and become 'Justice Ambassadors', in our Postcard for Justice Campaign. Those involved so far include Noam Chomsky, Emma Thompson, Juliet Stevenson, Sir Geoffrey Bindman, Peter Tatchell, Michael Mansfield QC and thousands of others.
Save Justice hopes, with your help, to raise awareness of the devastating impact these proposals will have on access to justice, and urge you to join in and sign our specially designed postcards which send out a clear message to Nick Clegg: Justice is not for sale.