The latest cuts to legal aid are a further assault on access to justice
Criminal Lawyers across England and Wales are taking part in industrial action. It began with solicitors on 1st July and continues to grow; once barristers join the action in numbers the criminal defence system will be in crisis mode.
Fees in criminal legal aid have not risen since the mid-1990s. The second of two 8.75% cuts in 15 months and the realisation that more cuts of up to 50% are to come in January 2016 on the back of the announcement at the end of May that an evidence defying tendering process for criminal defence provision is to be implemented has been the catalyst for action that has been brewing for the past three years. According to the London Criminal Court Solicitors Association two thirds of high street solicitors firms are slated to close. Of those that remain, most will be unable to offer more than a Cinderella service staffed by the unqualified and inexperienced. Advice deserts and miscarriages of justice will abound.
Those taking direct action have modest demands; a reversal of the most recent cut, an abandonment of the January cuts and a proper review of the endemic decay in the criminal justice system. Many hope that what has effectively been bottom up industrial action will solidify into a movement to withdraw bids submitted for the tender. We now join the dots with other professionals, calling out the austerity rationale in an area of the public budget that was falling markedly without cuts and openly identifying the ideological nature of the attack.
The appointment of Michael Gove as Lord Chancellor was welcomed by some as a rescue from the lead swinging of his predecessor. Gove’s “Two Tier” Justice speech on 23rd June caused a mild swoon amongst liberal legal commentators and the leadership of the Bar. Here they said was a free thinking reforming radical who “feels our pain” and is not afraid to accept what campaigners have been saying for years, the justice system is “creaking” and on the brink of collapse.
Gove’s admission that we now have a system which provides “gold standard” justice for the rich and substandard justice for everyone else was startling and has lumbered this most political of operators with a boomerang text. The speech amounts to both a specious reality hijack and a confession of systemic decrepitude which will colour dealings with the profession and the judiciary for the whole of his term. Rather than acknowledge that chronic underfunding has brought the system to the verge of failure he airily asserted that all could be put right through mysteriously achieved efficiency savings and the forced deployment of corporate pro bono lawyers. As Jack of Kent, the legal blogger put it, expecting “Hugo from Mergers” to parachute in to do a contact hearing in the Family Court is perhaps the most fatuous of the many “We’re all in it together “austerity fixes which Ministers have bandied about.
The action of the criminal defence lawyers is not some arcane trade dispute. For non lawyers the stakes are very high. Defending and prosecuting in the criminal justice system involves engagement with the most coercive powers of the state; to arrest, detain, prosecute and sentence. At a time of state retreat from post-war welfarism we see the advance of securitisation, surveillance and punishment. There is a justice grab going on here. As with health, education and housing the elites are engaged in a capture of excellence turning it into a silo of privilege.
There is of course the now routine privatising of profit and socialising of loss. One in every £7 spent in the Ministry of Justice on prisons and probation went to G4S and SERCO from 2010 -2014. Spending which went on apace even after both companies were revealed to have been placed under investigation by the Serious Fraud Office. Their alleged victim? The Ministry of Justice. All this while the new Justice Secretary acknowledges the haemorrhaging of money from the court system caused by continual contractual failures to get prisoners to the right court at the right time.
The assault on criminal justice was foreshadowed by what has happened to civil justice. Once the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was passed in 2013 millions were effectively disenfranchised, either unable to find advice from agencies that had seen their funding driven down or prevented from taking a case because whole areas of law had been placed outside the legal aid scheme or outside the reach of the courts. In employment law legally aided cases fell from 16,154 to 6 from 2012-2013 to 2013-2014. Prison law is now almost totally outside the oversight of the courts.
It is hard to escape 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 austerity, the ability to withstand the punitive power of the state, to ensure legality and procedural fairness in public decision making and the private rental and employment markets is being constrained in an unprecedented way. A new kind of emancipation is taking place, what the Oxford academic Frederick Wilmot Smith has called government’s “emancipation from its legal duties”.