What is undeniable is that there has been a massive transfer of wealth to the super rich at the expense of the majority. This has been achieved by quantitative easing and the cuts to public services. I do not make a political point here, just an observation based upon, for example, information supplied by the Office of National Statistics (here). With this transfer of wealth has been a massive transfer of power.
One of the checks against over mighty power is the ability of the ordinary citizen or groups to seek the protection of the courts, or to be enabled to defend oneself against such naked power whether manifested by powerful interests or by the state in enforcing law on their behalf. Often the law coincides with the interests of the Subject. After all, to utilise a famous quotation from Thomas Hobbes, without law to protect us life would be ‘solitary, poor, nasty, brutish, and short’ (Leviathan, 1651).
But what if we need protection, not potentially from each other, but from state power? Do we need such protection?
I would argue that with wealth, and thus power, increasingly concentrated in the hands of the few, to avoid social unrest caused by a reluctance of the political classes to redress this imbalance, it is essential to empower people to stand up against such forces. Over time the law has become an increasingly complex area of life with more statutes enacted than ever before and frankly, on occasion, quite obscurely drafted legislation putting a lay person at a distinct disadvantage when attempting to negotiate the complexities of civil and criminal litigation.
That is why at the height of post war austerity when our nation was economically on its collective knees Parliament nevertheless followed the recommendations of the Rushcliffe committee, who reported to Parliament in May 1945. This was followed by the Legal Advice and Assistance Act 1949. Prior to that litigants relied heavily on the good will and generosity of lawyers. Despite the appalling economic crisis and with cross party support the Act provided:
- Legal aid should be available in all courts and in such manner as will enable persons in need to have access to the professional help they require;
- This provision should not be limited to those who are normally classed as poor but should include a wider income group;
- Those who cannot afford to pay anything for legal aid should receive this free of cost;
- There should be a scale of contributions for those who can pay something toward costs; and
- The cost of the scheme should be borne by the state, but the scheme should not be administered either as a department of state or by local authorities.
But here we are at the beginning of 2015 witnessing the stealthy attack upon the rights of the subject under the guise of austerity, amidst wealth the post war political generation could only have imagined (albeit increasingly concentrated in the hands of a few). I harbour no resentment at all against those who have achieved financial success and would not wish to belong to a non-aspirational society, but I do deeply resent that, along with that growing inequality of wealth, our democracy is imperilled by the destruction of our right to defend ourselves against state power.
This attack upon legal aid is bizarrely timed, as expenditure has collapsed in recent years, and dishonest as despite the crudest distortion of statistics by the MOJ the UK is merely average in its overall cost when comparing like for like (see the National Audit Office’s briefing for the House Of Commons’ Justice Committee February 2012).
This links into the Governments attack upon the right to judicially review Government decisions. It is unhealthy and dangerous.
It is not just a question of ‘funding’. There is a direct and political attempt to deny people the hard fought right to legal aid. If people can be denied access to an important part of the democratic system this will be undermining to the rule of law and risking such a sense of injustice as to threaten eventually social unrest.
“The legal system we have and the rule of law are far more responsible for our traditional liberties than any system of one man one vote. Any country or Government which wants to proceed towards tyranny starts to undermine legal rights and undermine the law.”
This is a quote from the late Prime Minister Margaret Thatcher.
So what do we do to wake up MPs, the media and the population at large to this stealthy assault upon liberty? After all, in defeatist mood, do we all not say, because most people cannot envisage legal entanglements until they happen, there are no votes in criminal legal aid?
I think this is because we do not try hard enough to challenge people to think about the issues. This includes some (but increasingly fewer) journalists who find it easier to trot out Government propaganda about mythical expenditure or just their own dated and tired clichés about lawyers and ‘gravy trains’, than it is to do basic research and find out the truth about the poor income levels of dedicated legal aid lawyers.
We have to open people’s minds and dispel misconceptions but above all alert everyone to the desperate danger of the anti-democratic shift in power from the subject to the state that the assault upon legal aid represents.
There is a growing uneasiness in the nation about inequality as we return under George Osborne’s plans to 1930’s levels of public expenditure as a proportion of GDP. Mr. Grayling’s proposals will leave a wasteland without ‘access to Justice’ in any real sense whoever wins the next election.
That is why in this general election the profession needs to organise, in all constituencies, well-publicised meetings of all the prospective candidates on the subject of ‘Law and Order and Access to Justice’. The invitations alone will focus attention especially if publicised. I will be writing more about this in detail in the very near future. The profession (both branches) needs to fight this general election and we will.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts