‘Since being established in 1949, legal aid has grown into a £2billion-a-year industry far removed from its original, noble purpose of providing Britain’s poor with access to justice. For precious little is now off limits to taxpayer-funded assistance. Immigrants who have never set foot in the UK appealing against visa decisions . . . prisoners claiming their bed is too hard . . .’
Daily Mail, 16 November 20101
Little is off limits to taxpayer-funded legal assistance. Whether paedophile, prisoner or illegal immigrant, if you want to make a claim, however speculative, the largesse of the English and Welsh legal-aid budget – the most generous in the world2 – is there for you, filling the pockets of fat-cat lawyers with rates of up to £1,000 an hour.3 Not only will you get your day in court, however undeserving you may be, but your lawyers will be showered with cash to guarantee a Rolls-Royce service.
Even after reforms in 2012, introduced by Ken Clarke as Justice Secretary and designed to reduce the legal-aid budget, the expense of our legal system would remain unrivalled. As Mr Clarke assured us when interviewed in 2011:
If I manage to get all my changes through the House of Lords, we will still have by far the most expensive legal system of legal aid in the world. No other Western democracy would make taxpayers’ money so widely available for so much litigation and legal advice after I’ve made the reduction . . . If anyone’s running the risk of losing their house and their home, they will get legal aid, as long as they qualify financially, in other words. All cases of domestic violence, abuse of children, we’re still giving legal aid.4
And, as headlines to this day indicate, the age-old racket5 of taxpayer millions being squandered on the undeserving – such as £1 million in legal aid being handed to a paedophile gang to fight deportation6 – shows that the problem is there is too much legal aid, not too little.
So, listening to the headlines, and in particular to the soothing bonhomie of Mr Clarke, one would presume that Rachel7 would be OK. After years of serious violent and sexual abuse at the hands of her husband, she managed to flee with their two children. Two years later, after the divorce, he initiated legal proceedings to secure contact with the children. Rachel had a wealth of evidence to prove the domestic violence: a caution for assault which he had admitted; Social Services records; findings of fact made in the divorce proceedings; counselling records from a Rape Crisis centre. Her right to legal assistance had to be guaranteed.
Likewise Florence. She was brought to the UK as a tiny child by her mother and abandoned in the care of a friend. Florence had no idea that she was ‘undocumented’, until, after years of witnessing abuse, she was made homeless and taken into care, aged sixteen, when the true picture emerged. In order to avoid her eighteenth birthday heralding detention by the immigration authorities and potential deportation to her country of birth, she needed to go through a complex legal process to ‘regularise’ her status.8
Or Rita,9 evicted with her daughter by the local authority from her temporary accommodation after they deemed her to have made herself ‘intentionally homeless’. Rita, who was in a low-paid job and receiving tax credits, wanted to challenge this decision so that she and her child might retain a roof over their heads.10
Jenna,11 too, was surely entitled to legal help. She suffered life-changing 50 per cent burns to her face and body in an acid attack, which left her housebound and unable to work. She was wrongly assessed by the Department of Work and Pensions as fit to work, and needed to appeal the government’s decision to strip her of her disability benefit.12
A legal-aid system as excessively generous as ours would not hesitate to provide legal assistance in these cases, surely? If the winds of fate cast you into these most dreadful circumstances, if you were forced to navigate the labyrinth of our legal system to secure your basic rights to safety, shelter or statehood, you would be assured by Mr Clarke’s words that you would get the help you need.
In each of these cases, legal aid was refused.
No lawyer was made available by the state for any of these women. Nor for Florence, a child facing deportation to a country she had never visited. Presenting themselves at the law’s equivalent of A & E, they were informed that trained medical care was not included. No doctor or nurse for you. Feel free to pay privately, or grab a scalpel and have a go at treating yourself.
These stories are far from unusual. They occur with a tragic frequency that gives the lie to the narrative fashioned about legal aid in the headlines. For that – a lie – is what it is. You – we – have been lied to for years. And we are still being lied to today. We are lied to about who and what legal aid is for, why we have it and how much it costs. And the consequences of the lies, and what they permit those in power to get away with, threaten to undermine the entire basis of our justice system.
The circumstances in which you might need legal assistance are often those you would rather not contemplate. A sobering rule of thumb is that, if you are seeking legal help or representation, something in your life has most likely not gone to plan. Getting divorced, becoming injured, losing your job, losing a loved one, fighting a belligerent local authority or ex-partner to ensure your child gets the support she needs, facing homelessness, having state financial support withdrawn, fleeing your homeland, being sued by somebody, being accused of a crime – the association between our lowest moments and the brilliantine grins of permatanned legal professionals is probably a significant contributing factor to many people’s aversion to lawyers.
In any of those instances, the importance of being able to access justice – to access the courts to ensure a fair and lawful outcome – is self-evident. The consequences to you or your loved ones if things go wrong can be life altering. This is why our country has, since Magna Carta, prized the right of access to the courts, and to the timely and fair administration of justice, as the principle underpinning the edifice of our system: ‘We will sell to no man, we will not deny or defer to any man either Justice or Right.’13
Access to justice, although necessarily including access to the courts, does not simply mean the right of access to a physical court building. To return to our medical analogy, ‘access to medical treatment’ amounts to more than the ability to present yourself at a hospital; it is meaningless unless it also includes trained professionals to diagnose and treat you.
Similarly, inherent in the right to access the courts is a requirement that we are able to understand the laws on which they run. And, absent a sudden campaign of free universal legal tuition, that is going to require access to professional legal advice and, where appropriate, representation at court to ensure that our case is presented and argued as well as it can be.
In many cases, legal advice will be enough in itself. It will either satisfy the individual that there is nothing they can do, or arm them with the knowledge they need to confront and resolve the issue. For others, litigation – contested legal proceedings – will be unavoidable. In which case, if it is to be done properly, so that the individual has as fair a crack of the whip as their legally represented opponents, equality of arms will require that they have a lawyer to represent them in court.
For those who can easily afford to pay for legal advice and representation, there might sensibly be no objection to them being required to shoulder at least some of the financial burden, as long as there is a mechanism for full recovery in the event that their case succeeds. But, where anyone falling under the jurisdiction of English and Welsh law does not have the means to pay, assistance should be provided and the cost shared among all of us. Justice only for those able to pay for it is not justice at all.
That is why legal aid matters. Without legal aid, without access to the knowledge and the skills by which we can enforce our rights, we are voiceless.
However, its significance does not end there. The importance of each of us being able to meaningfully access justice spreads deeper and wider than the impact upon the individual in a given case. We considered earlier the judgment of Lord Reed in the Unison employment-tribunal fees hearing before the Supreme Court (p. 129), and the point he makes cannot be laboured enough: the right to access the courts matters not only to the individual with a legal problem, but to every single one of us living under these laws. Making a legal claim is not merely a private activity, of interest only to the parties involved; it affects all of us.
Contested legal cases result in judgments, which become added to the sum of our common law. Some of these cases establish principles of huge general importance – Lord Reed offers the example of Donoghue v. Stevenson, which is the case involving the snail and the ginger beer that we met in Chapter 3 when considering duties of care in negligence cases. Hundreds of thousands of claims have, since 1932, been litigated, won, settled or successfully defended on the basis of that single decision; many other cases have involved the courts refining or interpreting the principles further, as the shape of the law of negligence evolves and adapts. Another example offered by Lord Reed is court decisions on the interpretation of equal-pay law, which have had life-changing impacts for millions of people beyond the handful of parties physically sitting in that courtroom. The examples in criminal law are manifold, but to offer just one: in 1991, the House of Lords (the predecessor to the Supreme Court) declared that the common law ‘marital rape exemption’, which had historically allowed men to rape their wives with impunity, was henceforth ‘a legal fiction’. ‘The time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.’14
But the value of access to the courts extends far beyond the reported judgments of great renown; in our everyday lives, we need to know that the law is enforceable. We need to know that, if a crime is committed, the prosecuting authorities and the person accused have access to the courts for a fair trial to take place. When you go to work tomorrow, you rely on the security that, if your employer is tempted to withhold your pay, you are both aware of your right to go to a court to enforce the contract. When a landlord lets you a flat, both parties need to know that, if the accommodation is unsanitary or unsafe, there is a body of laws setting out the landlord’s responsibilities, and a package of protections to prevent him simply summarily evicting you to avoid his obligations. When you buy a new washing machine, the manufacturer and supplier need to know that their responsibilities to provide a safe and operational product are as enforceable as the duty on you to pay the instalment plan. Every day in a thousand ways we interact with and rely upon the law without it even occurring to us.
This is why I say, and make no apology for repeating, that the law belongs to all of us. Even if we have no direct contact with the courts for the majority of our lives, the law is both the engine of our democracy, quietly whirring away in the background, and its foundation – the giant turtle atop which our daily existence is unknowingly, delicately balanced.
Legal aid is often characterised as a pillar of the post-war welfare state, although its development was technically discrete from the true ‘four pillars’ – the National Health Service, universal housing, state security and universal education. Prior to 1949, if you required legal advice or representation, whether in criminal or civil matters, you would generally either have to pay privately, or hope to secure the charity of a lawyer working pro bono (for free).15
In 1944, the government set up the Rushcliffe Committee to consider the issue of access to justice, and, after the committee reported in 1945, its recommendations were accepted. The Legal Aid and Advice Act 1949 was the result, with the aim expressed: ‘to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services.’16
While initially targeted at divorce cases, the scope of legal aid had, by the 1960s, broadened into other areas of civil (i.e. non-criminal) law, and around that time a system of criminal legal aid also took root. Legal aid was not – and has never been – a universal entitlement. Since its inception, it has operated on a dual testing system, comprising a means test and a merits test. Depending on your means, you would be expected to contribute towards the cost of your legal aid.
Although legal aid is funded by the taxpayer, it is not nationalised. Instead, privately run solicitors’ firms and (largely) self-employed barristers carry out the work, at legal-aid rates set centrally by the state. The distinction between solicitors and barristers, to put it simply, is that, if you have a legal problem, a solicitor is your first point of contact. They will advise you and, depending on the nature and complexity of the case, may instruct a barrister on your behalf. Where you have a solicitor and a barrister on the same case, they work as a team, with the solicitor handling the litigation – the legal administrative side, for want of a better term – and the barrister providing specialist advice and, if it goes to court, advocacy services. The common analogy deployed to illustrate the solicitor/barrister dynamic is the relationship between a GP and a consultant (where the consultant invariably takes all the credit for the GP’s hard work).
The role of lawyers in our legal system is an active one. The adversarial system, a tradition forged in medieval times to which England and Wales still adhere today, pits two parties against each other in front of an independent tribunal. Each party is responsible for gathering the evidence that supports their case and presenting it before a court, arguing how the law as applied to the evidence operates in their favour. This is contrasted with inquisitorial models, as are common on the Continent, in which the state has a far greater investigative function, gathering the evidence for itself and conferring on the lawyers a (generally) more limited role.17
A key component of the legal-aid system since the 1970s has been Law Centres. These are easy-access local community centres providing free legal advice and assistance to those in need. Their work includes offering advice in housing, social welfare and employment law, and helping people negotiate the legally and bureaucratically discombobulating warrens of the system, whether it be filling in benefits forms, negotiating debt settlements or representing their clients at court. Each Law Centre generates its own funding – chiefly legal-aid contracts, local authority contracts and charitable donations. They are designed to complement the network of solicitors’ firms undertaking legal-aid work, and are crucial in helping people who might otherwise fall through the cracks.
When legal aid was first brought in, 80 per cent of the population were eligible. There were fluctuations in the decades that followed, as different areas of law were brought within and taken outside the ambit of legal aid, but, as of 1979, some 79 per cent of the population were covered. The assumption rested that the remaining 21 per cent were of sufficient means to afford legal advice and representation, so it could properly be said that there was a general and unimpeded right of access to the courts.
The problem that has arisen since that peak in 1979 is that legal aid, like any system in which the state pays for its citizens to receive the services of highly trained professionals, is not cheap. As the ambit of legal aid increased, and as the number of cases being brought before the courts increased, so did the cost to the taxpayer. In the 1980s, the cost of the legal-aid budget became a political issue. Suddenly, successive governments were scrambling to bring the rising total down. Means-testing was tightened, rates paid to lawyers were cut or frozen, and the scope of coverage was reduced. By 1999, the percentage of the population who would qualify for civil legal aid had fallen, in twenty years, from 79 per cent to 51 per cent.
That same year, the Labour government introduced an absolute cap on overall expenditure. While a cap may sound superficially reasonable as a response to increasing costs, its fundamental flaw is that it overlooks the fact that the law is a demand-led frontline service, much like the NHS. A particular issue was that the Labour government was extremely keen on prosecuting as many people as possible in the criminal courts, only to be perplexed at the concurrent rise in criminal legal-aid costs. The cap failed, and the budget continued to increase, peaking at £2.2 billion in 2009/10. By this time, legal-aid eligibility among the general public had crashed to 29 per cent.
The only way, it seemed, that real reductions could be achieved was by doing three things: removing legal aid completely from whole areas of law, such as personal injury; radically cutting the rates of pay; and restricting even more severely the eligibility of those for whom legal aid was originally intended.
And in order to facilitate this, to persuade the population to surrender their hard-won right to access justice, a message needed to be reinforced. Legal aid, the public had to believe, was their bane, not their shield.
The Legal-Aid Lies campaign had begun.
The success of the Legal-Aid Lies campaign was in its simplicity and its relentlessness. In the latter regard, the movement was assisted by a broad coalition of interests supportive of its aims, which ensured that, whenever the opportunity to inflame public sentiments arose, it was not missed. The front benches of all three major political parties when in government – Labour from 1997 to 2010, the Liberal Democrats from 2010 to 2015 and the Conservatives from 2010 to the present day – have all promulgated the fear and misinformation required to purchase public support for their budgetary ambitions. Raucous backing is traditionally roared by the self-appointed guardians of common sense and anti-political correctness who congregate on the Conservative back benches, but the issue does not divide neatly along party lines. Even when in opposition, in 2010, Labour parroted the government’s claim that legal aid was at ‘unsustainable levels’.18 Similarly, antagonistic anti-legal-aid reporting was not confined to the traditional right-leaning outlets generally supportive of lower government spending; the Mirror, positioned since the 1930s as a left-leaning supporter of the working class, continues to regularly run headlines inciting outrage at legal-aid expenditure.19 Add into the mix a ready supply of commentators, pressure groups and think tanks for whom legal aid is an easy cut on the road to a small state utopia, and you have a formidable machine.
As for the simplicity of the campaign, its focus was on two core messages: Look who legal aid is for and Look how much legal aid costs.
When you think of somebody entitled to legal aid, what is the first image you conjure in your mind? Is it, to step back a chapter, a young person with severe disabilities, desperate to be accommodated closer to their parents? Is it Gary McKinnon, fighting life-threatening extradition to the United States? Is it a twelve-year-old victim of child trafficking and sexual exploitation, rescued from her immediate perdition and now seeking asylum? Perhaps your mind’s eye brings into focus the iconic footage of the Birmingham Six outside the Royal Courts of Justice, arms aloft as they celebrate belated vindication, their wrongful convictions finally quashed and their seventeen-year prison sentences brought to an end?
Or is your default association with legal aid somebody a little less, well, deserving? Do you think of the Sunday Mirror screaming, ‘Telford child sex monsters handed almost £2.5 MILLION in legal aid’?20 Or the sullen faces below the Sun’s headline, ‘AID FOR PAEDOS: Rochdale paedophile gang handed £1m in legal aid to fight deportation’?21 What about the sinister character lurking behind the Daily Express’ ‘Fury as terrorist gets £250,000 to FIGHT deportation out of UK’?22 Possibly you think of the protagonists behind the Daily Mail-exposed ‘abuses of the [legal aid] system by prisoners and failed asylum seekers’?23 Or the brutal murderers of toddler James Bulger, on whom countless headlines have been expended on the same theme, as per the Daily Star: ‘Staggering cost of legal aid given to James Bulger killers REVEALED’?24
The frequent and uniform tendency to report legal-aid expenditure in the vein above successfully communicates a clear message: legal aid is for the sole benefit of undeserving individuals.
They are undeserving because of their status as society’s fallen, and we know it is only such wrong’uns who benefit because we are never told of the millions of ‘ordinary’ people – people like us, and towards whose circumstances we’d no doubt be extremely sympathetic – who qualify for legal aid. We only hear of the villains. And we know that the public expenditure is for their sole benefit because we are reminded that they ‘pocket’ or ‘receive’ or are ‘handed’ the thousands or millions of pounds alleged to have been paid (we’ll look at what is actually paid a little later). But this language is misleading to the point of rank dishonesty. Nobody eligible for legal aid ‘receives’ or is ‘handed’ a penny. If legal aid is granted, then the solicitors and barristers involved submit a bill, at the end of the case, to the Legal Aid Agency – usually calculated on strict fixed rates, well below market value – and the funds are paid directly to the solicitor and/or barrister.
It is only because the Ministry of Justice readily discloses the cost of legal aid in individual cases, in a way that would be unthinkable in the context of the Department of Health and a patient, that our understanding in this respect can be so easily warped. The vision we are encouraged to summon and berate is of gold-plated paedophiles, diving, Scrooge McDuck style, into a pool of taxpayer cash, to be frittered away as they see fit. But people eligible for legal aid no more ‘pocket’ the cash than a patient receiving a heart transplant ‘pockets’ the £44,000 it costs the NHS.25
However, by framing legal aid as a direct financial gain paid to the people we are told to fear and despise most, the narrative succeeds in divorcing us from the founding principles we examined above. Legal aid is not a private benefit, nor a public subsidy for a private transaction between a loathed stranger and the state; it is not a luxury to be conferred only on the morally pure; it is the key – the price of which is shared among us – to guaranteeing access to justice for all of us, whatever we’ve done and however unpopular we may have made ourselves, and to keeping the heart of our democracy beating.
Those immigration cases pursued by terrorists and paedophiles? They matter. They matter because, going back to Lord Reed, whether these men are sinners or saints, the law applies, and the state has to know that the law applies. If there is no means by which the state can effectively be challenged or held to account in the way it deals with immigration law, we quickly find ourselves in the territory of the Windrush scandal, with arbitrary deportations and unchecked injustice. If, as the UKIP MEP quoted in the Daily Express ‘terrorist deportation’ piece says, ‘Terrorists have opted out of the system’, and it is for politicians to choose to whom the law applies, the rule of law shatters. The same reasoning pertains to prisoners: the law does not cease to matter because of the seriousness of their crimes. The state still has duties to respect the rights of people in its charge. If, but for the grace of God, we or someone we loved found ourselves in prison, we would want to know that the law still applies. That our mistakes, however serious, do not outlaw us and leave us at the capricious mercy of the mob.
The criminal cases – they matter, too. It matters that we ensure, as best we can, that the right people are convicted, and that somebody prosecuted by the state machinery and a highly competent, legally qualified prosecutor has their own, equally competent legal representatives safeguarding their interests. Where the charges are as serious as child sexual abuse, it is all the more imperative that we provide a fair trial, so that, if convicted, we can be satisfied that justice has been done. And, if the argument has to be made personal, it’s because you, sitting there, reading this book on the train, minding your own business, could be accused of a crime you didn’t commit. The criminal appeal reports are stuffed with miscarriages of justice where innocent men and women lost years of their lives because the state wrongly believed they were guilty. You are not immune. And if it happened, you would want your trial to be scrupulously fair. And you would certainly, I expect, hold no truck with suggestions that you should be denied legal assistance because of the depravity of what you were alleged to have done, and the fear of how a bored news editor at the Sun might choose to fill an empty page.
What is invariably omitted from the legal-aid coverage is the practical benefit of legal advice and representation. Good and honest lawyers – and there are rogues, of course, but they should be dealt with in their own right – will advise sensibly and act as a gatekeeper to deter spurious claims and caution against the merits of running a particular defence.26 At court, for all that Jarndyce v. Jarndyce still occupies the popular imagination of litigation lawyers, the truth is that legal proceedings are better for everyone where the parties are legally represented. There is an oft-repeated claim that legal aid saves the taxpayer six pounds for every one pound spent, and while the evidence suggests that the calculation is not quite that straightforward,27 it is an observable fact, in every court in the land, that litigants-in-person greatly increase the time and cost of legal proceedings, in much the same way as somebody trying their hand at removing a gall bladder for the first time would take far longer, and create far more mess, than a trained professional. When you consider that many people who are involved in bringing legal-aid claims are among society’s most vulnerable, including those with educational needs or learning difficulties, the barriers erected by forcing them to self-represent can be insurmountable.
Moreover, legal representation is often vital to protecting the dignity of those involved, particularly in criminal proceedings. It ensures that witnesses are questioned competently and appropriately by somebody who knows what they are doing, rather than being taken round the houses for hours on end by a self-representing defendant firing a stream of irrelevant, unfocused interrogatives. It means that victims of serious, life-changing offences don’t have to be confronted in court by the perpetrator. When the Mirror casts a false choice, suggesting that the legal aid spent on the defences of the Telford grooming gang should have been paid instead, somehow, to the victims,28 it does so in either wilful ignorance or dishonest defiance of the reality that, without the fair trial enabled by legal representation, the victims would have received no justice at all.
From around 2010, a new catchphrase caught on in the Ministry of Justice: The most expensive legal-aid system in the world. Barely a news report or Commons debate would pass without a minister or spokesperson for the MoJ solemnly reminding the public that, at an annual cost of £2.2 billion, England and Wales had either ‘the most expensive’ or ‘the most generous’29 system of legal aid. Whether this was in the world30 or in Europe31 varied dependent on the messenger, but the message was crystalline: legal aid was ‘exorbitantly expensive’,32 legal firms were ‘rak[ing] in millions from legal aid’,33 and urgent cuts – £350 million a year – were required at a time of national belt-tightening.34
As Chris Grayling, who succeeded Ken Clarke as Justice Secretary in 2012 and accelerated the cuts announced by his predecessor, told the Daily Mail: ‘At around £2billion a year, we have one of the most expensive legal aid systems in the world. At a time of major financial challenges, felt by businesses and households across the country, the legal sector cannot be excluded from our commitment to getting the best value for money for the taxpayer.’35
This reasonable-sounding sentiment was expressed at a time when what Tony Blair once described as the ‘gravy train’ of legal aid,36 as demonstrated by the millions of pounds paid to ‘fat cat lawyers’,37 was a regular target of criticism across the media spectrum. And it persisted through the cuts brought into effect in 2012 and through successive governments, with Justice Minister Dominic Raab MP telling MPs in 2017 that ‘last year, the UK spent more per capita than any other Council of Europe member’.38
But the premise was flawed in two key respects: the ‘most expensive legal-aid system’ meme was, and remains, wholly dishonest. And the individual stories relied upon as illustrations were – and, to this day, still are – jaw-droppingly misleading.
Readers of The Secret Barrister: Stories of the Law and How It’s Broken may recall that we explored this myth in the context of criminal legal-aid reductions, but it was deployed equally in the justification to cut civil legal aid. As of 2009/10, the total legal-aid bill for England and Wales was £2.2 billion. Roughly half went on civil legal aid, half on criminal. And no doubt £2.2 billion is, out of context, a lot of money. But, put in certain contexts, the figure doesn’t appear quite so terrifying. For a population of 65 million people, it works out at nine pence per day, per person, or £2.82 a month. The total spending of the entire Ministry of Justice that year – that’s everything, from legal aid, to the Crown Prosecution Service, to the courts, to probation, to prisons – was £9.3 billion. Total public spending on health in 2009/10 was £116 billion. Education was £67.3 billion. The Department of Work and Pensions spent £156.15 billion. That year, £30 billion was spent on debt interest. Winter fuel payments, which the government famously refused to subject to means-testing, meaning that multi-millionaires still received their £200 supplement, cost £2.74 billion that year, some half a billion pounds more than the ‘unsustainable’ legal-aid bill.39
But it was the cost compared to other justice systems that formed the central plank of the Ministry of Justice’s concerns. The most expensive legal-aid system in the world. This claim, it transpired, was based on a 2009 report entitled ‘International comparison of publicly funded legal services and justice systems’.40 The authors analysed the costs of eight justice systems, using data from between 2001 and 2007, and found that, indeed, England and Wales spent considerably more on criminal legal aid (€33.50 per capita) than any of the other seven countries.
The flaws in the conclusions that the MoJ subsequently drew and circulated in the media were astonishing. For a start, eight countries do not a world make. But, more importantly, the report, as the authors acknowledged, was not comparing like with like. The comparator nations – France, Netherlands, Germany, Sweden, Australia, New Zealand and Canada – all had such different legal systems that a meaningful comparison was almost impossible. The adversarial model in England and Wales means that a disproportionate portion of the cost of legal proceedings goes towards legal aid, but the corollary is that our courts’ budget, say, is much smaller than that of other countries. Some, for instance, have state-employed defence lawyers, and so the cost of defence advocacy falls into a different budget. Isolating legal-aid budgets and comparing the cost between systems – some of which barely have legal aid, but have significant costs elsewhere in their judicial processes – was an act so fundamentally dishonest that it is staggering a responsible government thought they could get away with it. Even more staggering was the fact that this report was brandished as the justification for quick-fix swingeing legal-aid cuts when the authors themselves warned that the sources of the comparative data were ‘insufficiently robust to support much in the way of inferences’, and that the ‘high level of legal aid spending in England and Wales appeared to have multiple causes. This makes it difficult to produce “quick fixes”.’41
A far better comparative exercise would consider the overall cost of justice systems between nations. And, happily, this is an endeavour undertaken by the Council of Europe every two years, comparing the costs of different aspects of justice systems between the forty-one member states. The 2010 report, based on 2008 figures, showed that, at the time the most expensive legal-aid system was being debuted by Ken Clarke, the total annual spending on the judicial system (courts, legal aid and prosecution) in England and Wales was 0.33 per cent of GDP per capita. The average figure among the forty-one countries? 0.33 per cent. We were bang on average, level with Russia and Lithuania, spending a fraction more than Moldova but significantly less than FYR Macedonia.42
From 2012, legal-aid expenditure fell sharply – as we shall see, well in excess of the £350 million predicted by Ken Clarke – but, fast-forwarding to 2017, we see Dominic Raab recycling the ‘we spend more on legal aid than anyone else’ trope, purporting to rely on the Council of Europe figures for 2016. But, again, it is not so much sleight of hand as shoving a dove up your jumper in plain sight of the audience and yelling, ‘Magic!’ For, as we’ve seen, comparing legal-aid expenditure alone is an utterly meaningless exercise.43 Due to the build of our system, we will always be spending more than other countries, in the same way that they will always be allocating more of their budget towards the spreadsheet marked ‘courts’. The Daily Mail breathlessly reported in 2014 that, based on 2012 figures, ‘We spend seven times more on legal aid than the French,’44 but found no space to point out that, when you look at the total spend on the justice system, we in fact spent less than France as a proportion of our public expenditure.45
The vacuity of the approach is difficult to illustrate, but it is perhaps like comparing the efficiency of a four-wheel drive and a motorbike. It’s a peculiar exercise in itself, but a conclusion that there’s an obvious problem with the car because ‘we spend twice as much on wheels for the car’, or that the motorbike needs urgent reform because ‘the handlebars on a bike cost exorbitantly more than those on a car’ would be dismissed as the ravings of a madman.
Had Mr Raab been interested in a more honest discussion, he might instead have advised his parliamentary colleagues that, as a percentage of overall public expenditure, England and Wales’ spend on the justice system (including prisons and probation)46 in 2016 was 1.6 per cent, well below the median. In 2018, it was the same story.47
If raw statistics tell us anything, it is that we have never spent more than the European average on our courts, legal aid and prosecution combined, and, since the cuts started, now spend well below the median. For the government to continue to isolate the legal-aid figures as probative of excessive ‘generosity’ is purely and simply a deceit.
Every good legal-aid horror story starts with an impressive-sounding number. Take the Telford grooming gang, who the Mirror tells us were ‘handed almost £2.5 MILLION in legal aid’ for their criminal trials.48 On a slightly more modest, but still substantial, scale, the killers of Bristol teenager Becky Watts ‘received £400,000 in legal aid’, reported the BBC.49 The Guardian couldn’t resist informing its readers that ‘Lee Rigby’s killers received more than £200,000 in legal aid’.50
Chris Grayling told the Daily Mail in 2014 that ‘a single trial can cost more than £10 million in fees’. The same article fixated on a single solicitors’ firm receiving £15 million in civil legal aid in a year, with another receiving £8.27 million in criminal legal aid.51 Criminal barristers earn an average of £84,000 a year, the Ministry of Justice announced to the press in 2014.52 When allied to the headline £2.2-billion-a-year spend from 2010, the desired impression is plain.
There are a lot of tricks at play in this part of the narrative. Firstly, there are often outright lies. A common ploy, where an individual has been deemed eligible for legal aid for different purposes, is to group all the payments and allocate them to the most unattractive cause. For example, the Telegraph reported in 2017 that ‘a terrorist described as the “very model of a modern Al Qaeda terrorist” has won £250,000 in legal aid to fight deportation’.53 But that was a lie. For those who read down to the bottom of the article, there’s a sheepish disclaimer that the bulk – £210,000 – was legal aid paid in respect of his criminal trial. The deportation fight was funded by some of the ‘almost £40,000’ granted in respect of ‘other cases, including his deportation’. Make no mistake, £40,000 is still, out of context, a large sum of money. But it is less than a sixth of the figure claimed in the opening line.
The Sun’s headline in 2019 – ‘Rochdale paedophile gang handed £1m in legal aid to fight deportation’ – was, according to the reporter, based on information obtained in a Freedom of Information request.54 I subsequently obtained the same information from the Ministry of Justice. The total spend on legal aid for the deportation proceedings was, as of March 2019, precisely zero. The Sun’s story was utterly false; they had simply taken the total figure for the lengthy criminal trials of the ‘gang’ and pretended that they applied to immigration proceedings.
The second trick is to exploit the (in some cases, fully deserved) caricature of the wealthy, pin-striped, well-fed commercial lawyer, and conflate it with their scrawny poor relation in publicly funded law. On average, lawyers as a homogenous blob do very well, financially. If you have ever paid privately for a solicitor or a barrister – say, for commercial conveyancing or a contested divorce – you will find it hard to believe the claims of penury that you may hear from legal-aid lawyers. But the private/public distinction is absolutely critical. It’s akin to the difference in income between Premier League footballers and their League Two counterparts.
Commercial solicitors and barristers, working in the City on multi-million-pound company litigation, can bill an hourly rate which usually ranges between the hundreds of pounds to the thousands. And while there may, I hear from colleagues who were practising in the 1980s, have been shades of a similar mentality at play in legal aid in bygone years, in the twenty-first century, in both criminal and civil law, things are completely different. For a start, despite the allusion that legal-aid barristers pluck a figure out of the air and whizz a six-figure invoice to the taxpayer at the end of a case, the fees are fixed by the Legal Aid Agency, at what you may consider to be surprisingly low rates. Many cases, especially in crime, now attract a fixed fee for the solicitor and/or barrister, meaning that, irrespective of how much time a case takes you to prepare, you receive the same fee. For the types of case in which hourly rates do apply, they work out as far more generous than fixed fees (which can result in hourly rates below minimum wage), but the hourly rate still hovers around the £50 to £70 mark in civil,55 and the £39 mark in crime.56 While that may appear an attractive headline figure, it is gross income, not profit. For solicitors’ firms, the fee has to cover all overheads – wages, support staff, office rent, utilities, professional insurance, IT equipment, professional subscriptions, training and all the associated costs of being an employer, and then, of course, tax. For barristers, most of whom are self-employed, it is a similar story. My gross income has to pay for my chambers expenses (such as the wages of my clerks and support staff), chambers rent, travel, insurance, practising certificate (I pay several hundred pounds a year for the privilege of doing my job), legal textbooks, ongoing training, wig, gown, subscriptions, as well as tax. To give context, I take home just under 38 per cent of my gross income.
The claim by the Ministry of Justice that criminal barristers ‘earn £84,000 a year on average’ was false, and the UK Statistics Authority rapped the government’s knuckles for ‘misleading’ the public by publishing figures which not only included VAT (which, of course, goes back to the Treasury), but by deliberately excluding all the low earners to skew the average.57 The true median figure in 2014 was in fact a net income of around £27,000 a year.58 Not small beans, but hardly in keeping with the impression Mr Grayling was eager to create.
That is not to deny that some legal-aid barristers do very well – like anyone at the top of their profession, the superstars involved in the most serious and complex criminal and civil cases will be well rewarded. But this is a fraction of the incomes of their commercial law counterparts. And, to put one flagrant untruth to bed, the Sun’s suggestion of any link between legal aid and lawyers charging ‘£1,000 an hour’ is wholly dishonest.59 At best, that will be the figure chargeable to private-paying criminal clients, such as multinational corporations accused of regulatory or white-collar offences, and will never, ever be footed by the taxpayer.
The third trick is that, where the legal-aid figures quoted for a particular case are accurate, the context is deliberately stripped out. You are not told how the figure was calculated, nor what it represents. You are not told that it includes, for instance, fees paid to medical or scientific experts involved in the case. You are not told that it includes VAT at 20 per cent, which is money that ultimately finds its way back to the Treasury. You are not told what work went into that particular case – how many lawyers, working how many hours – so that you can assess whether it’s an outrageous extravagance or fair professional remuneration.
If it is a simple matter, involving minimal work, in which a very junior legal-aid lawyer is bringing home several hundred pounds an hour, there may well be justifiable cause for concern. Even if it is an extremely serious case, involving QCs and issues of life and limb, I would accept that there will be a rate at which, compared to other publicly funded professionals, it can be argued that the legal-aid scheme is operating too generously towards the lawyers.
But you are never provided with that context, only ever the bare figures, from which you are urged to agree that Something Is Wrong. It’s a con.
Fourthly, in the criminal legal-aid field, a common favourite is to present a fabulously wealthy defendant and decry ‘multi-millionaire criminals claiming a fortune from legal aid’.60 Under means-testing, nobody with a joint disposable income of £37,500 or more is entitled to criminal legal aid. However, what has almost always happened in these cases is that the prosecution has successfully applied to have the defendant’s assets and bank accounts restrained, so that the defendant can’t dissipate the contents, and the prosecution can confiscate the assets as the ‘proceeds of crime’ upon a conviction. This means that the defendant can’t access his assets to pay for legal representation and so he qualifies for legal aid, even though he is notionally very rich indeed. However, if the defendant is convicted, those legal-aid costs will invariably be reimbursed from his restrained assets. So, the taxpayer does not lose a penny. That minor, but rather important, detail is often omitted.
Fifthly, and finally, in a familiar move, the myth relies on the public believing that these few high-profile, high-spend cases are representative of the norm. The solicitors’ firms turning over millions each year will be the biggest firms with staffs of thousands. The average criminal legal-aid solicitors’ firm operates on profit margins of 5 per cent, with 50 per cent of firms assessed by an independent report in 2014 as ‘at medium or high risk of financial difficulty’.61 The cases in which hundreds of thousands, or millions are paid will be the lengthiest, most serious and most complex of their type, requiring months, if not years of work by numerous professionals.
According to the most recent figures, the average cost of a legal-aid case in England and Wales is €1,325, or £1,165.62 That includes all legal advice, all legal representation and any other disbursements – such as expert fees – incurred in the proceedings. Many cases – including serious and complex cases – are resolved with barely a few hundred pounds of taxpayers’ money being spent. It happens every day, inside and outside courtrooms across the land. You’re just not told about it.
None of this is to say, of course, that there are no problems with legal aid, and that there is never any public interest in reporting cases that might cause the public concern. It is only right that, given limited resources, there be some restraints, and that taxpayer money is not frittered on obviously vexatious civil claims, or conferred on wealthy criminals who have no need for it. Nor do I pretend that the efficiency of our system as a whole shouldn’t be scrutinised – that is the very function of the media and those in power.
But the arguments that we are fed and are encouraged to adopt aren’t based on evidential rigour or honest philosophy; they are myths, lies and distortions which service a defined agenda, namely the blunt reduction of legal aid, irrespective of the merits of this course, or of the dangers.
And with the twin myths – Look who legal aid is for and Look how much legal aid costs – burned into the public psyche, the government in 2012 put its grand plan into action.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was the flagship legislative reform of the governmental agenda to reduce the budget of the Ministry of Justice, which, between 2010 and 2020, it achieved to a greater extent than any other government department – a cut of 40 per cent. As the title suggested, legal aid was uppermost in the MoJ’s sights, and, confident that the most expensive legal-aid system myth had been swallowed, Justice Secretary Chris Grayling set about his ‘reforms’.
To achieve the usual anodyne-sounding objective of ‘deliver[ing] better overall value for money for the taxpayer’,63 LASPO reached for a buzz saw and cleaved legal aid entirely from swathes of civil law, including claims against public authorities; most clinical negligence; consumer law; compensation for criminal injuries; education; most employment law; private family law; housing; immigration; prison law and most welfare law.
To the government, these were simply abstract categories of legal practice on a spreadsheet. But in the real lives of real people, it was removing support from children suffering catastrophic injuries due to medical negligence; rape victims seeking redress; parents like Chris Gard and Connie Yates facing losing their baby; single parents at the mercy of predatory rogue landlords; desperately sick or disabled people screwed over by the incompetent bureaucracy of the Department of Work and Pensions. People whose lives didn’t need to be made any harder.
LASPO also drastically changed the means-testing to bring down the number of people who would be eligible for legal aid for the few areas of law still covered. Previously, if you received means-tested welfare benefits, you would automatically qualify for legal aid, it being recognised that you were clearly of limited means. LASPO changed that. It introduced a capital means test that took into account the equity in your home (which benefits means tests exclude), the assumption being that, if justice mattered that much to you, you should sell the roof over your head. The income means test was set so low, and the contributions that people had to pay were so high, that an independent report concluded, ‘Many people living substantially below [the minimum income standard] are excluded from legal aid entirely or are awarded it but required to make contributions that bring their income even further below [that standard].’64
To keep a rein on access to legally aided early advice and representation for people concerned about discrimination, debt or special educational needs (SEN), the government introduced a mandatory ‘telephone gateway’. Anyone with a legal problem in those areas had to ring a government helpline, where they would be assessed by a telephone operator without legal training to see whether they qualified to be referred to another (legally trained) operator, who would determine whether the individual was deserving of face-to-face legally aided advice. The referral rate for this service spoke to its true purpose: in 2016–17, not a single discrimination case was referred through the gateway for legally aided advice. One case of SEN was referred. The number of people calling the gateway for debt advice was 90 per cent lower than the government had forecast.65 A parliamentary report in 2016 expressed ‘concern that this has created barriers for people for whom telephone advice is not appropriate, including those with physical and mental health conditions and those whose first language is not English’.66
An ‘exceptional case funding’ mechanism existed to ensure that nobody fell through the cracks. We saw such a mechanism with the employment-tribunal fee scheme in Chapter 4, and how well that worked. LASPO was no better. The government promised when debating the bill in Parliament that between 5,000 and 7,000 cases would be funded per year. In 2017, the total was 954.67 Part of the reason was that the government had made the application forms so complex that it took lawyers three to four hours to complete.68 Many of the people reliant on – desperate for – this safety net had vulnerabilities, including mental-health and learning difficulties. The government knew this when it designed this hideously complex bureaucratic process. It gave these people no chance.
The combined consequences were vivid. The number of people accessing civil legal aid plummeted by 82 per cent in eight years. The savings were successful beyond the Treasury’s wildest dreams: forget the £350 million the MoJ had promised to save, legal aid was so restricted that, by 2018, spending had fallen by 37 per cent to £1.6 billion, over double the savings expected.69 Mr Grayling was able to bow out as Justice Secretary in 2015 believing he had accomplished his mission.
History would quickly prove him wrong.
The effect on ‘private family law’ cases was perhaps the loudest canary in the mine. When legal aid was removed from these proceedings – which include divorce, applications for restraining orders70 and child contact – the government’s solemn vow was that victims of domestic violence would still qualify (as long as they satisfied the stringent means test). But the conditions that the government attached, which required narrow and specific forms of evidence that many victims of serious domestic and sexual violence simply could not obtain, rendered the exemption a dead letter for many. The example of Rachel at the start of the chapter was a real case brought before the Court of Appeal, in which the charity, Rights of Women, sought a judicial review to challenge the legality of the regulations that specified these evidential conditions. The Ministry of Justice fought the challenge all the way, so desperate was it to exclude as many potential victims as possible from legal aid, but the Court of Appeal ruled in 2016 that the MoJ’s scheme operated ‘in a completely arbitrary manner’.71 Eventually, in late 2017, the government announced plans to relax the criteria.72
But that, of course, is only half the problem. Because, even if an abused partner is legally represented, they will, in contested legal proceedings, usually give evidence in court, and be cross-examined by the other side. And if the other side is not legally represented, this can lead to the appalling – and, for a victim, terrifying – situation where an abuser is cross-examining their victim in person. In the criminal courts, there is a legal prohibition against alleged perpetrators cross-examining their alleged victims in person in cases of this type, and, if a defendant is unrepresented, the court will appoint an independent advocate for the specific purpose of cross-examining the complainant. But no such provision existed in the family courts in 2012. So, when LASPO kicked in, family judges were confronted with countless cases where women who had complained of rape and serious violence were being subjected to direct cross-examination by the men who they alleged had abused them. As Women’s Aid point out, ‘Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.’73
Family judges spoke out in cases that resonated around the legal echo chamber, but struggled to make a dent in the public consciousness. As Mr Justice Hayden said, ‘It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator . . . [T]he process is inherently and profoundly unfair. I would go further, it is, in itself, abusive.’74
Mr Justice Bodey went even further still: ‘I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases.’75 The government promised to address the issue, but the proposed legislative reform in 2017 found itself the victim of Theresa May’s snap election and was lost in the wash. It took until 2019 for the government to bother to revisit it.
Meanwhile, the number of litigants-in-person soared. In 2012–13, 42 per cent of parties in private family law cases were unrepresented. By 2016–17, this had increased by 50 per cent, to 64 per cent.76 Only 20 per cent of hearings saw both parties represented; in more than a third, nobody was represented. The government’s bold intention that parties would be encouraged to take up mediation instead of litigation flopped, with both uptake rates and success rates falling significantly, partially because there were no lawyers to signpost warring parties to mediation services. The rise in litigants-in-person was not just confined to the family courts; the Personal Support Unit, which assists litigants-in-person, helped 7,000 people in 2010–11. By 2017–18, the number was over 65,000.77 When investigative journalist Emily Dugan tried to obtain an MoJ-commissioned report, which contained comments from judges highly concerned about litigants-in-person in the criminal courts, the MoJ tried to bury it.78
Away from family law, housing and welfare law was particularly badly hit. Both are highly technical and complex areas of law – alienating enough to lawyers in other fields, like me; utterly incomprehensible to many of the people who rely on them.
In housing, there was a 58 per cent fall in ‘legal help’ (legally aided advice, as distinct from representation at court) between 2012/13 and 2018. Almost all areas of housing law advice were removed from the scope of legal aid,79 leaving families at the mercy of rogue landlords. Previously, if your rental property was falling into disrepair, a housing lawyer could send a letter of claim to your landlord, which would usually prompt him to take action. The cost of this was £157 plus VAT.80 Now, unless the disrepair poses ‘serious risk of harm to health and safety’ – a high threshold – you would be ineligible for assistance. As homelessness increased, LASPO removed legal help for housing benefit claims and for issues such as rent and mortgage arrears, making it just that little bit more likely that those clinging onto the bottom rung of society would fall off completely.
As a consequence of the cuts, the number of legal-aid providers specialising in housing fell by a third, creating ‘legal advice deserts’ – huge areas of the country where there are no legal-aid providers at all. As of 2018, for example, there was not a single housing legal-aid provider in the whole of Surrey, Shropshire or Suffolk. Law Centres, crucial sources of free advice for many, saw their incomes fall by 50 per cent, forcing many to close. Between 2013 and 2019, half of all Law Centres and not-for-profit legal advice services shut their doors.81 Low-income families seeking help are now forced to travel long distances to other counties, at their own expense. Many just can’t.
Legal aid for welfare benefit law saw the greatest decline: over 99 per cent. Legal help, which provided support to people challenging benefits decisions in the tribunals – such as those who are wrongly sanctioned or assessed as ineligible for disability benefits – was slashed from 82,500 cases in 2012 to fifteen – fifteen – in 2014. The government readily admitted that the removal of legal aid from most welfare law would have ‘a disproportionate impact on disabled people’, 82 but considered it a price worth paying. The Law Centres Network, in its evidence to the Bach Commission, which was set up to examine the effect of LASPO, said its experience was that ‘major social security reforms and an increasingly punitive approach from DWP have led to a sharp rise in inaccurate decisions and benefit sanctions’.83 The removal of legal aid created a perfect storm. One of many affected was Jenna, the victim of an acid attack whom we met in the introduction to this chapter, whose disability benefits the government wrongly tried to stop. She was only able to secure the overturning of the DWP’s monstrous mis-assessment of her needs thanks to the pro-bono efforts of a Law Centre, which helped her take the case to a tribunal.
In June 2018, British citizens were as outraged as their transatlantic counterparts to learn that, in President Trump’s America, children were being forced to represent themselves in deportation proceedings.84 But, thanks to LASPO, we had been requiring non-British national children to do the same thing. While millions-of-pounds-to-terrorists-claiming-Article-8 headlines sought to give an impression of unrestrained largesse in this arena, statistics show that, even before LASPO, England and Wales spent a much smaller portion of its legal-aid budget – 2 per cent – on immigration cases than most comparable countries, such as Belgium (17 per cent) and the Netherlands (13 per cent).85 After the changes, nobody, not even children, could seek publicly funded legal help or representation – or disbursements, such as translators – in most cases of non-asylum immigration and all cases where the right to a family life under Article 8 was pleaded as the grounds to remain.
This meant that children such as Florence in the chapter’s introduction were denied help. If they wished to remain in the country they’d lived in for as long as they could remember, they would have to self-represent in complex legal proceedings, potentially taking on Home Office lawyers in court.
It also meant that adults with genuine and worthy cases – people who had lived in Britain for decades, but who were lacking the correct documentation – were powerless to challenge arbitrary, unfair and unlawful decisions by the Home Office. Anyone caught up in the Windrush scandal would need to find the money for private legal fees, on top of the £2,389 application fee for indefinite leave to remain. Before she resigned as Home Secretary in 2018, Amber Rudd took the time to inform Parliament that she still did not see good reason to reconsider the legal-aid cuts in this area.86
In August 2018, following a legal challenge, the government belatedly agreed to change the rules to bring unaccompanied children back within the scope of immigration legal aid.87 The damage that was done to thousands of children88 in the intervening years, however, is probably irremediable.
We’ve touched, above, on a few legal challenges that arose as a result of LASPO and its associated regulations, but there were many more. There was a successful challenge to the ‘exceptional case funding’ criteria in 2014. The attempt to restrict the grant of legal aid to those who had been resident in the UK for at least a year was deemed unlawful (April 2016), as were the cuts to legal aid for prisoners (April 2017).
The response of the Ministry of Justice to being told repeatedly by the courts that it was acting unlawfully was not as contrite as you might hope. Chris Grayling penned an op-ed in the Daily Mail blasting ‘Left-wing campaigners’ launching judicial reviews to thwart his department,89 and promptly introduced restrictions on the ability of citizens to apply for judicial review. The criteria for granting legal aid in judicial review cases was tightened, choking off 50 per cent of claims between 2013 and 2017. A House of Commons report in 2018 expressed concern that, ‘very clearly these changes are cutting into cases where there is a valid human rights concern and where access to justice is required’.90
But the government had its wish: legal aid removed, stopping millions of people from challenging the state. And a double lock achieved by preventing people challenging the decision to remove it.
And, to return to where we started this chapter, this assault on access to justice did not only affect the individuals directly involved – the vulnerable and destitute exiled from the law’s protections. It affected us all. LASPO was an act of gross constitutional vandalism, scything at the legal ties that bind us. The devastation lies not merely in the individual lives ruined, nor the people cut adrift from their own courts, but in the denigration of our whole justice system. The cases never pursued; the judgments never written; the claims lost, which might have been won if only for the availability of a qualified lawyer to make the arguments; the precedents never set; the unjust laws and policies never challenged. Negligent landlords and uncaring state jobsworths and self-serving ministers were granted a free pass, as they saw their victims’ shields torn from their hands. Our society is both reflected and landscaped by what takes place in our courtrooms. The damage done by LASPO is incalculable.
The government was warned. Time and time again. By MPs, peers, charities, lawyers, judges. Its own Civil Justice Council, the body set up to advise the government on civil justice matters, cautioned against the cuts. But the government didn’t care. And the MoJ conceded as much in 2014. Its senior civil servants admitted before the House of Commons Public Accounts Committee that the Ministry of Justice had not conducted any research before bringing in the LASPO cuts. It had not considered, for instance, the knock-on costs to other areas of government spending. It did not research whether, in removing £2 million of legal aid for housing early advice, the Ministry was creating £100 million of mental-health costs for the NHS to pick up. ‘The government was explicit it needed to make these changes swiftly,’ MoJ permanent secretary Ursula Brennan told MPs. ‘It was not possible to do research about the current regime.’ When asked what evidence had been considered, the response came: ‘The evidence required was that government said we wish to cut the legal aid bill.’91
And this, in fairness, was clear from 2010. When the Civil Justice Council’s concerns that costs would be shifted to the NHS were put to Ken Clarke in an interview, he airily dismissed them as ‘campaigning nonsense’, falling back on the most-expensive-legal-aid-system chestnut.92 As concern grew once Chris Grayling accelerated the cuts to criminal legal aid, the Mail reassured its readers that ‘it is hugely misleading to suggest Mr Grayling’s reforms are designed to target the poor and vulnerable. Rather they will reduce the income of some of the best paid lawyers in the land, stop prisoners making frivolous claims against the State and turn off the legal aid tap to the very wealthy.’93 Leo Mc-Kinstry, in the Express, pooh-poohed the suggestion that the cuts undermined the rule of law, chuckling that ‘this kind of alarmist talk could hardly be more absurd’.94
But it wasn’t alarmist. It wasn’t absurd. It was correct. Real and lasting damage was being done to the fabric of our justice system. The people who needed legal aid to enforce their rights were being consciously and deliberately cut adrift. And lives were ruined as a result.
I have spent most of this chapter in the past tense, as if LASPO and its effects are a shameful aberration in our history, but this is very much our present. Right now, if you are unfairly dismissed from your work, you are on your own. If, unable to navigate the employment-tribunal system without legal help, you fall back on the safety net of the state and receive benefits, and the obnoxious DWP wrongly sanctions you, you are on your own. If your house falls into disrepair and your landlord unlawfully refuses to fix it, you are on your own. If, as a consequence, you fall ill through stress and are unable to work, but are erroneously declared fit to work by an incompetent private contractor and lose your Employment Support Allowance, you’re on your own. If you become the victim of a serious crime and need compensation to try to piece together your shattered life, you’re on your own. If, heaven forbid, you lose your husband or wife or child in a terrible accident and there is an inquest, the state will pay for lawyers to represent its police officers or its officials. But not for bereaved families. You are on your own.95
Chair of the Public Accounts Committee Margaret Hodge described the MoJ’s approach to LASPO as one of ‘endemic failure’. She was probably too kind. It was a concerted campaign, years and governments in the making, to deceive the electorate about legal aid in order to make the lives of those in power that little bit more comfortable. That ministers such as Dominic Raab were, even post-LASPO, still peddling the most-expensive-legal-aid-system myth, and that even when the government, in 2019, finally published, nearly a year late, its post-implementation review into LASPO, then-Justice Secretary David Gauke still, in the first paragraph of his foreword, defended the reforms and cited the long-gone £2 billion legal-aid budget,96 suggests that candour and sincerity in discussions about legal aid are still a bridge too far for the Ministry of Justice. Having sliced roughly a billion from legal aid,97 the government’s solution to the problems identified was to reinvest a total of £8 million, not even rice-papering over the seismic cracks.
‘The thing that really distressed me,’ Margaret Hodge told the MoJ in 2014, ‘is how you embarked on this with so little evidence. When you were changing the rules, you had no idea the impact it would have.’98 Now the government knows the impact, and still sticks resolutely to its guns, the only available interpretation is that it simply doesn’t care.