The House of Lords today followed its earlier impressive performance over welfare
and health issues by inflicting a series of defeats on the government over
proposed cuts to legal aid in the Legal Aid, Sentencing and Punishment of
Offenders Bill. Polly Toynbee has written an insightful (if oddly named) comment
in the Guardian, which highlights that the government's Bill will not
only be an ineffective way of saving money, but will also hit hardest those who
are worst off in society.
The thing with legal aid is that it is the key
to guaranteeing everything else. Legal rights are fairly meaningless if you
don't have the meaningful possibility of enforcing them. Most of the time people
don't need to enforce them - but the possibility of enforcement is
crucial. If you can't fall back on the court then there is no real incentive for
the other person to respect your rights - and having a lawyer to represent you
in court or in a pre-trial negotiation is vital to having real access to
justice. Most people do not know the law or how it works - that is why we have
lawyers! The law is a complicated and specialist profession, and when you have a
legal problem you want someone representing you who knows what they are doing.
Now, it's fair to say that most of us do and should pay for a lawyer if
we want one. The question is how much should be available funded by society, and
the answer seems clear enough - we should fund legal representation for those
who genuinely can't afford it to bring meritorious cases. So there are two
tests: (1) a means test for the individual seeking the funding, and (2) a merit
test for the case they want to bring. And funnily enough, that's exactly what
the law at present provides.
In terms of test (1), the means testing,
the criteria for getting legal aid for non-criminal cases are already very
strict - almost no one that I know would be eligible. You can take a look for
yourself by putting in some figures to the government's calculator. The amount of legal aid you can get starts to be
reduced if you have more than £3,000 of savings, and you get nothing at all if
you have £8,000 of savings or more. And obviously they take salary into account
as well.
Then there's test (2), the merit test. The Legal Services
Commission has guidelines and the lawyer that you have gone to who is trying
to get legal aid for you has to convince the Commission officials that the case
is likely to succeed. Not that it could or should - that it is likely to. In
other words, your case is likely to win - which means that your rights have been
infringed, or someone owes you money, or something like that.
So,
basically, cuts to legal aid are a denial of justice for the poor. The
government is trying to stop people with no money of their own from getting help
remedying legal wrongs and claiming things they are entitled to. Is this the
kind of society we want to live in?
