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Cutting legal aid
May 31, 2013 4:57 AM   Subscribe

"A fundamental shift in the relationship between the government and the governed is taking place: by restricting access to the law, the state is handing itself an alarming immunity from legal scrutiny. There are several aspects to this: the partial or total withdrawal of state financial support for people who lack the means to pay for legal advice and representation; and for those who can pay, a restriction on which kinds of decision by public bodies can be challenged. In the area in which I work, criminal law, defendants who receive legal aid will lose the right to choose who represents them in court. Specialist criminal barrister Francis FitzGibbon on the impact the UK government's legal aid reform plans are having on the English & Welsh justice system.

This isn't the first time legal aid in England and Wales has come under fire from the coalition government. The Legal Aid, sentencing and punishment of offenders act 2012 already cut legal aid for "most cases involving housing, welfare, medical negligence, employment, debt and immigration". The reasoning then, as now, was to save money and cut the deficit. But, as the London Review of Books argued at the time the aim of the coalition government to save £350 million would only reduce the £163 billion deficit by 0.2 per cent. (N.B. it's worth reading this article for the history of the English legal aid system Joanna Biggs sketches in it.)

The quality of the legal aid system seems not to have been a consideration in these cuts, as the answers given by Dr Elizabeth Gibby, head of legal aid policy at the Ministry of Justice at an open meeting suggest:
But it was the forensic questioning that hit home.

"Can you remind me of the section in the consultation paper which deals with the interests of the user of the service," a solicitor from Oxford asked politely.

"I'm sorry; I don't quite understand what you are saying," Gibby replied after a pause.

"Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals," the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn't think that quality had been adequately covered in it.
The Conservatives have long been unhappy with legal aid, as was New Labour when they were in power and one blogger suggested the goal was not a cheaper, but a radical different legal aid system:
The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest.
[...]
Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where much less time is spent on case preparation, much less scrutiny is given to materials that may hold vital evidence, and many more suspects and defendants are persuaded to plead Guilty – irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.
More information about the legal aid cuts can be found at Illegality's link roundup . The cutting of legal aid is only part of the transformation of the English justice system, as summed up the Law and Lawyers blog. Resistance against these changes is widespread; the Save UK Justice epetition has almost 70,000 signatures.
posted by MartinWisse (40 comments total) 26 users marked this as a favorite

 
Just f.y.i: the use of English instead of British or UK is deliberate, as many of these proposals or laws only impact England and Wales, as both Northern Island and especially Scotland are devolved enough that their regional parliaments are responsible for these areas of the law.
posted by MartinWisse at 4:59 AM on May 31, 2013 [2 favorites]


I can tell you that the broad view of the Cambridge law department is that this is a terrible mistake. Indeed, it's such a mistake that it's likely to lead to a successful Article 6 ECHR challenge.
posted by jaduncan at 5:08 AM on May 31, 2013 [4 favorites]


"In England, justice is open to all - like the Ritz Hotel"
posted by Jakey at 5:09 AM on May 31, 2013 [12 favorites]


In other legal news, a trial was halted recently when the outsourced agency responsible for supplying translators didn't send one as they said they wouldn't make any money out of it. Also, the Forensics service is being privitised, and this has caused debate about private companies having access to police databases.

Also, you now have to pay to bring an unfair dismissal case against your employer.

In my country, the rich's hate for the poor knows no bounds.
posted by marienbad at 5:13 AM on May 31, 2013 [8 favorites]


Also, needs "eyes passim ad nauseum" tag
posted by marienbad at 5:14 AM on May 31, 2013 [6 favorites]


It's like some kind of "who hates poors more" competition with the US.
posted by Pope Guilty at 5:20 AM on May 31, 2013 [6 favorites]


The long game that they've been playing since FDR, Aneurin Bevan et al scored some temporary victories continues
posted by lalochezia at 5:22 AM on May 31, 2013 [4 favorites]


As someone dealing with the impact of LASPO already, I can only hope that what a colleague of mine terms the impending "Housing Apocalypse", involving a combination of the impact of the Bedroom Tax, the ending of Discretionary Housing Payments for Bedroom Tax arrears and vastly reduced Legal Help availability to prevent the inevitable flood of possession actions by social landlords from coming to court will lead to such pressure on the Legal Aid system that this idiotic and odious process will be shown up as the unworkable fag-packet nonsense it undoubtedly is, and before the end of 2013. The government may find it harder to push these proposals through when the practical consequences of such foolery is exposed in a "news-worthy" manner.

We can only hope. Fucking vicious, feral bastards.
posted by howfar at 5:24 AM on May 31, 2013 [10 favorites]


You're paid per case, not by the amount of time, effort, or outcome. Look for cases to be wrapped up much sooner with the minimum amount of effort from legal side lawyers.
posted by blue_beetle at 5:25 AM on May 31, 2013 [1 favorite]


This is interesting, because I think, if I'm not mistaken, the cuts they're talking about, we in the US already have? Particularly around not being able to choose your own public defender?
posted by corb at 5:33 AM on May 31, 2013


Yes, it is true that the legal system differs in different countries.
posted by helicomatic at 5:54 AM on May 31, 2013 [2 favorites]


Why is the conservative solution to everything always to attempt to run it like a business? And a badly run, chop-shop, hierarchical business at that? Even if the economics underpinning this radical approach to every social enterprise weren't shakey and debateable at best - and downright bunk, disproved over and over again, at worst - it would still be the case that some things are just not appropriate to market pressures. State owned monopolies would be one.

Legal aid is a way for ordinary people to use the state as an insurer - as they do with welfare - against the possibility that they might wind up too poor to pay their own legal fees. The only people who will benefit from this are the rich, rich corporations and the state, all of whom do not need assistance anyway. If you live in the UK and you are not very rich, then you have every reason to be very scared indeed by these developments. As the National Lottery slogan used to say: it could be you.

If I had to speculate, I would say that conservatives in the UK probably hate lawyers for two other reasons. First, lawyers have been among those who have roasted the right-wing tabloids in the UK most thoroughly in recent months, particularly in the Leveson inquiry. A lot of public support for the right in the UK is underpinned by a steady drip of lies and slanted information in the Sun, the Daily Mail and the Times. Restricting the power of the press to lie and spy puts the conservatives on the defensive for the first time in a long time: it attacks their power-base in a way that nobody has done in years. They want to put the legal profession back in its place, by weakening it, not only by denying ordinary people access to justice but by ensuring that the only people who become lawyers are rich and work in areas of law that are essentially the helpmeets and slaves of the already wealthy.

The other reason is that conservatism doesn't, in my experience, hold up well when you put it in a court room. Sit down, debate both sides of an idea, study the facts in great detail, see the impact of your decisions on the people you are affecting - and it is very hard to sustain most conservative economic and moral positions, which seem to be quite glib. Put enough of a spotlight on the facade, and it begins to crack up. That might seem like an extreme statement, but I invite readers to weigh it against their own experience, including here on Metafilter.

Whatever the reasons behind it, the professions in England have been the victim of a concerted attack by this government. It has gone after academics, teachers, doctors and nurses. It is not surprising that it would now go after lawyers. Perhaps there is something about the competence and knowledge required to succeed as a professional that scares these men of business. Being able to do little more than tell other people to do intellectually unchallenging tasks in a timely manner probably leaves one with a sense of profound insecurity. But the success of a society is based on nurturing the ability of its members. Withering the legal profession in order to make tiny cost savings in the short term, in the service of a defunct economic model, is a crazy thing to do - the very opposite of true conservatism or patriotism.
posted by lucien_reeve at 5:54 AM on May 31, 2013 [17 favorites]


In my country, the rich's hate for the poor knows no bounds.

I'm sure the feeling is mutual
posted by Mario Speedwagon at 5:57 AM on May 31, 2013


For those who want to keep up to date with this debate, I advise joining Twitter and following @savejusticeuk, @jackofkent, @john_cooper_QC and @kirsty_brimelow (at least).

Perhaps the most sensible thing lawyers could do would be to counter-attack: lobby to rewrite several laws to - and I'm just speculating here - remove the power of banks to create money (as advocated by the Positive Money movement); improve controls on the press (which is currently used by a few very unpleasant people with an agenda like Paul Dacre to attack lawyers and judges); use their skills of rhetoric and argument to tear down the economic ideology on which so many of these bad ideas are based, etc. etc.
posted by lucien_reeve at 5:58 AM on May 31, 2013 [3 favorites]


Look for cases to be wrapped up much sooner with the minimum amount of effort from legal side lawyers.

Which means pleas to some kind of guilty charge (even if on a lesser charge), as that is typically how you avoid the most expensive and time consuming aspects of the legal process.
posted by dry white toast at 6:01 AM on May 31, 2013


This is interesting, because I think, if I'm not mistaken, the cuts they're talking about, we in the US already have? Particularly around not being able to choose your own public defender?

Yes, because the US legal and penal system is a shining fucking model of equality.
posted by zombieflanders at 6:04 AM on May 31, 2013 [6 favorites]


Why is the conservative solution to everything always to attempt to run it like a business?

When the only tool you have is a hammer, every problem looks like a nail.
posted by Rat Spatula at 6:12 AM on May 31, 2013 [3 favorites]


Also, needs "eyes passim ad nauseum" tag
Indeed, indeed, indeed. The Private Eye has turned out to be the best newspaper in England with its long, clear, and rightful exposure of the legal aid catastrophe and numberless other government failings.
posted by Jehan at 6:29 AM on May 31, 2013 [2 favorites]


When the only tool you have is a hammer, every problem looks like a nail.

More like, if you want to bash everything, use the best tool for the job.
posted by rtha at 6:43 AM on May 31, 2013 [4 favorites]


The Private Eye has turned out to be the best newspaper in England with its long, clear, and rightful exposure of the legal aid catastrophe and numberless other government failings.

It's one of the only news organs that can rely on having intelligent readers.
posted by jaduncan at 6:52 AM on May 31, 2013 [1 favorite]


Particularly around not being able to choose your own public defender?

This is bad thing, and England doing this will make England worse off.
posted by MisantropicPainforest at 7:04 AM on May 31, 2013


Dear Rest of the World,

Please stop trying to emulate the American Right. They suck, their ideas are shit, and they don't care about gays, the poor, or minorities.

This advice goes double for Harper's Canada and Cameron's Britain.

See you in New York this summer!

Love,

The American Left
posted by Aizkolari at 7:06 AM on May 31, 2013 [1 favorite]


Just f.y.i: the use of English instead of British or UK is deliberate, as many of these proposals or laws only impact England and Wales, as both Northern Island and especially Scotland are devolved enough that their regional parliaments are responsible for these areas of the law.

It is also worth pointing out that whilst this is strictly true of this change, and many of the other individual measures taken by the Westminster Government, there is an indirect consequence of the funding change*. The funding allocations for the devolved parliaments are decided in large part by the Barnett Formula, which links the block grant to Scotland and NI to expenditure in England. Therefore, as the Tories hack and slash at public services in England, it will result in a "Barnett Squeeze" on the available funds for the devolved parliaments. Unless tax policy begins to diverge, it's hard to see how to avoid service cuts as a result of the efforts to shrink the state in England.

*I say change rather than cut, because past (and ongoing) experience in other services shows that the actual spend is likely to rise whilst service quality goes down, but the expenditure will be moved off the government P&L, so the Barnett point applies.
posted by Jakey at 7:29 AM on May 31, 2013 [4 favorites]


Jakey mate, that is the tories version of equality.
posted by marienbad at 7:50 AM on May 31, 2013


If you want your horrible news with an extra serving of bullshit frosting, John Oliver and Andy Zaltzman covered this story in The Bugle (starts at 24:45).
posted by Kattullus at 7:51 AM on May 31, 2013 [6 favorites]


This is interesting, because I think, if I'm not mistaken, the cuts they're talking about, we in the US already have? Particularly around not being able to choose your own public defender?

Note that I'm neither American nor British, and that most of the reporting I've heard is from The Bugle, but I'm quite certain that the US doesn't engage haulage firms to deliver legal aid to the poor.
posted by the cydonian at 7:58 AM on May 31, 2013 [4 favorites]


Unless tax policy begins to diverge, it's hard to see how to avoid service cuts as a result of the efforts to shrink the state in England.

"Divergence of Tax Policy" sounds like a classic British understatement for Scottish independence / Devo Max. :)
posted by the cydonian at 8:05 AM on May 31, 2013


Well, again, strictly speaking, the Scottish Parliament already has some tax raising powers. Nevertheless, it would be difficult to imagine the differences in policy continuing to grow without there being pressure for Devo Max, at the least, if not full independence.
posted by Jakey at 8:25 AM on May 31, 2013


Why is the conservative solution to everything always to attempt to run it like a business?

In this case it isn't. Businesses succeed by being selected by consumers. Clients are the consumers of Legal Aid, not the state. These proposals introduce strict price competition for the provision of a state monopoly, and are in direct opposition to free market principles. Unlike NHS changes, this isn't even being hidden behind free market rhetoric, it's just a naked attack on the provision of tax-funded legal services to taxpayers.
posted by howfar at 10:04 AM on May 31, 2013 [4 favorites]


In addition to the odiousness of making legal aid more difficult to access (and worse) for people who need it most, this is pretty obviously a part of the continuing attack by the Right on the professional class in general. As somebody's already pointed out, they've come for the academics, doctors, etc., already, and they've had it out for lawyers for a long time. They can't stand the idea of anyone except themselves subsisting without being a slave to some corporation.
posted by junco at 11:09 AM on May 31, 2013


Clients are the consumers of Legal Aid [...]

But that's exactly how the 'business' argument goes - THOSE people are CONSUMING this thing, but they're not PAYING for it! You, the taxpayer, are SUBSIDIZING them! OMG, unbusinessly!
posted by Rat Spatula at 2:28 PM on May 31, 2013 [1 favorite]


But that's exactly how the 'business' argument goes

Eh, I really don't think it's the 'business' argument at all. The business argument is cargo-cult free marketeering, and a little more sophisticated that what's happening here. This is just a 'criminals don't deserve your money and every person on a modest income who is arrested is a criminal' argument. More simply it's a 'we can't afford it' argument, which is superficially plausible despite being demonstrably untrue and boilingly insane. It has nothing to do with supposed free market efficiencies and everything to do with simple divide and rule. The Tories dress up lots of terrible policies as being to do with business or choice, but they also have terrible policies that they dress up differently.

The reason that they're not really bothering with the business argument in this case is that the panic conditions created by the global financial crisis mean they don't really have to. The austerity trick is a different trick to the Thatcherite privatisation trick, even though the actual motivation* is the same. The trick you're thinking of is being used extensively in the case of NHS privatisation because the vast majority recognise that the NHS is a vital service.

This government is perhaps the stupidest of the post-war era, but that doesn't mean they're not capable of a certain cunning. Watch your enemy carefully, and don't allow your expectation of his tactics to lead you to misinterpret them.

*evil
posted by howfar at 3:19 PM on May 31, 2013 [3 favorites]


These proposals introduce strict price competition for the provision of a state monopoly, and are in direct opposition to free market principles.

I submit that this might be rather taking conservative / libertarian arguments at face value. I would suggest that any time a conservative or libertarian proposes a supposedly neutral, business- or efficiency-oriented change to existing arrangements everyone present should ask "cui bono" at once: because the person "to whom the good" when a conservative advances an argument is almost invariably someone who is already rich and powerful. The avowed abstract principles matter a lot less than the predictable end result.

I would also add that the conservative / libertarian distinction between state and corporate power, which seems to mean so much to them, is very unconvincing to those outside that political tradition. While I am aware of the right-wing critique of totalitarianism, like most people on the left I firmly believe that this critique is fundamentally confused: it ignores the extent to which the state and big business are deeply intertwined and interdependent. Claiming that a pure "market" somehow stands outside the state - a state which is required to create such a market in the first place, ensure that it runs in anything like an ethical manner and in general does all the work of securing to the conservative or the libertarian the justifiable and moral success of which he thinks we all should be proud - that is not a claim for which there is, as far as I am aware, any historical evidence whatsoever. Put another way: the idea that you have state power vs. free market principles is essentially a simplistic mistake that is a holdover from the propaganda of the cold war.

What you actually have is always a state, one that is more or less corrupt, one that creates and sustains a market that is more or less fair. Libertarian rhetoric would be a lot more grounded in reality if it acknowledged this fact, and acknowledged that what it seeks is a more fair legal set-up and a more fair distribution of property than the existing one. What it isn't is a defence of a natural state of affairs. It is an argument that a highly artificial state of affairs is best and natural.

In this case, I say that this is a conservative move for the simple, fact-based reason that it is conservatives who are supporting it. Conservatives have co-opted the rhetoric of the free market, but use it to serve the defence of current inequality and claims to ownership of large items of property (like land, major companies etc.). They constantly mislead people about the real role of small businesses in the economy (which is very small) but imply that those same principles scale up to large businesses (which they manifestly don't).

Anyway, tl, dr: don't take conservative arguments at face value. Conservatism and right-wing politics are essentially about defending inequality; they have co-opted the more complex arguments in favour of free markets (which are themselves highly debateable) in the service of that goal.
posted by lucien_reeve at 6:05 AM on June 1, 2013 [4 favorites]


Of course. But the "business" argument and the "fiscal responsibility" argument are different spurious arguments that need to be opposed in different ways. Preaching to the choir is great, but the majority of people need the smoke and mirrors pointing out. Not sure why you'd think identifying different tactics amounts to "taking them at face value", seems a pretty wacky approach to political practice.
posted by howfar at 6:47 AM on June 1, 2013 [1 favorite]


English lawyer here, although my practice is about as far as it's possible to be from legal aid.

These proposals are a catastrophe in the making if the Article 6 challenge by the Bar Council and Law Society fails. There will be a tidal wave of miscarriages of justice if this goes through. As a former Lib Dem I am appalled that Clegg has done nothing to restraint that vicious intellectual pigmy, Chris Grayling.

And to top it all, last week the Ministry of Justice announced that it is consulting on privatising the civil court system. Words fail me.
posted by dmt at 12:32 PM on June 1, 2013 [1 favorite]


The most striking thing is that these proposals came out of the blue. It was a fundamental juridical right up until a year ago suddenly it wasn't - swatted away on a whim by a minority government against all advice and polls, not only wiping away a part of the British social soul but rushing it through because for once "We need to make progress". Sickening, and there's more to come.

It's a warning for everyone - it's always there until it's not, and if you let them get away with an inch they'll take everything we have.
posted by forgetful snow at 5:10 PM on June 1, 2013 [1 favorite]


Libertarian rhetoric would be a lot more grounded in reality if it acknowledged this fact, and acknowledged that what it seeks is a more fair legal set-up and a more fair distribution of property than the existing one.

I think if you believe libertarians are seeking "more fair distributions of property" then you are fundamentally misunderstanding their ideas; libertarians believe that any state-rendered "Distribution of property" is inherently unfair.

These proposals introduce strict price competition for the provision of a state monopoly, and are in direct opposition to free market principles


Yes, but you don't want to make this argument, because the retort to that would be, "Okay, you're right, let's not pay for people's lawyers at all."
posted by corb at 4:23 AM on June 4, 2013


libertarians believe that any state-rendered "Distribution of property" is inherently unfair.

It's amazing when people don't comprehend that inaction is an action.
posted by Pope Guilty at 5:33 AM on June 4, 2013 [2 favorites]


[Would be super awesome if this did not go down the rabbit hole of "What is Libertarianism" at this early stage]
posted by jessamyn at 8:13 AM on June 4, 2013


Yes, but you don't want to make this argument, because the retort to that would be, "Okay, you're right, let's not pay for people's lawyers at all."

Yes. That would indeed be the retort of those who think that the rich deserve better quality justice than the poor, no matter how morally repugnant the consequences of that belief. Thank you for this illustration.
posted by howfar at 10:45 AM on June 4, 2013 [1 favorite]


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