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Justice under the knife: Legal aid cuts interview
Ahead of the 7 March strike by lawyers Russell Fraser, a young criminal barrister and joint secretary of the Haldane Society of Socialist Lawyers spoke to Sarah Sachs-Eldridge about the implications of the cuts to justice and the plans to fight them.
Who will be affected by legal aid cuts?
In order to qualify for civil legal aid, you must both be lawfully resident in the country and have lived in the country for at least 12 months. This means, for example, that if the Yarlswood detainees who've been allegedly sexually abused by some of the privately employed prison wardens there wanted to sue either Yarlswood or the secretary of state, they wouldn't be able to.
There's also going to be a threshold introduced for criminal legal aid. Anyone with a disposable household income which is greater than £37,500 would not qualify for legal aid at all. If two people are earning it's quite a low bar. Under that you have to make contributions to your defence and if acquitted you don't get it back.
It's not all career criminals or people who are constantly in the courts - family proceedings and criminal proceedings will be affected.
What will the impact be?
The effect of the cuts is two-fold. One is that people will have to represent themselves and when they do hearings take longer and the supposed saving is wiped out by adding costs to running the courts.
We have already seen the effects of the last round of cuts in 2010. In the family courts, new evidence requirements for accessing legal aid are difficult to satisfy. So some women who have alleged that they have suffered domestic violence have to represent themselves or perhaps don't take the cases to court at all.
We certainly expect miscarriages of justice to increase. Innocent people will go to prison and guilty people won't be convicted - it works both ways.
The second effect is with changes to things like civil legal aid and Judicial Review (JR). With civil legal aid there is a merit test. If there's a new type of case or if it's a test case then by its very nature it's uncertain what its prospects of success actually are. Now, if there's a borderline chance of success then you won't get legal aid for it. Very important cases may not be brought to court.
What's behind the attack on Judicial Reviews?
JR is a mechanism by which people and groups and organisations can hold the state to account, where the state may have made a wrong or unlawful decision. The government is saying now that lawyers will not be paid for the initial stages of their work. Lawyers may think: I can't run the risk of taking this case and it being refused permission even if I think it's probably quite a good case.
If these important cases aren't being taken then the law won't develop and won't progress. The Poundland case against forced workfare is another example.
We're seeing an attempt by this government to insulate itself against challenge and criticism and scrutiny. Any restriction on JR starts to look like a way of avoiding accountability.
There was a separate consultation last year on shortening the time period by which a JR could be brought to challenge a planning decision. The reason given was not that there were abuses of it or that there were inefficiencies or there were spurious claims. Justice minister Chris Grayling claimed the government legislative programme was being interrupted by JRs being brought and 'much-needed reforms' were being slowed down.
That's not a principled basis on which to approach a problem. That's a purely ideological way of thinking. In an article last year Grayling said that left-wing campaign groups were using JR as a publicity tool. He also talked about restricting the eligibility requirements further for being able to bring JR.
But, as usual, the government falls back on the claim there isn't enough money.
From the outset the government has inflated the real size of the budget for legal aid. You routinely hear that it's £2 billion a year. This may sound like I'm splitting hairs but it's less than a billion on criminal legal aid and about a billion for the rest. The criminal legal aid spend has been falling without any intervention from government year-on-year. The real argument is that it's a false economy which will end up costing more.
Those of us working in the criminal legal aid side think there's simply no room to take any more money out of the system. The Crown Prosecution Service is chronically under-resourced. The government is proposing to cut fees by 17.5% across the board and to limit a magistrates court case to £258. The hourly rate will probably come out as less than the minimum wage given the work that has to go into preparing a case.
Inefficiencies are caused by delay - often arising from problems with G4S and Serco getting people to court or having insufficient staff in court to bring people where they need to go. The outsourcing of translation services seems to be an unmitigated disaster.
But isn't the legal profession as middle class and wealthy as you get?
People have been surprised to learn, as a result of the action, what we earn. A friend of mine, after working for a year or so self-employed, filled in a tax return and had earned about £13,000 for the year. So we're not actually rolling in money. People have to rely on overdrafts or parents.
Things will be pushed back - it'll be people who've made a lot of money in a previous career or have wealthy parents who can come into law. Barristers don't have pensions, maternity or paternity leave, we don't have sickness pay. It'll be increasingly difficult for women. People from ethnic minority groups will be less likely to do the job. The likely disappearance of BME lawyers firms will have an impact on Black and Asian communities, making the justice system more alien, dominated as it is by rich, white men.
It's interesting how it got to this point. A lot of my senior colleagues say we should have done this a long time ago. Successive governments have taken money out of the system. I take the view that maybe at the top end some QCs are getting paid too much. But it shouldn't be used as a way of attacking and undermining the system.
There have been sections of the profession from the outset saying we should argue back, we should take a principled stand but it gets to the point where there's a certain naivety in that approach. There are different reasons why the government is doing this - it's not simply to save money. A QC who was a Tory MP has said we should give the MoJ a list of dates in which we are going to withdraw our labour! That's hardly the sort of language you hear from arch-Tories.
So what does all this mean for 'justice'?
I wouldn't necessarily agree with those who say we have the best justice system in the world - it wouldn't be the justice system that I or any socialist would envisage. But compared to the US criminal justice system it's far better. There you can only access the justice system if you've got money. Lawyers are under pressure to get as many clients as possible because they need the money. They can't adequately devote time to each case.
When legal aid was introduced in 1949 the then attorney general said the point of legal aid was to open the doors of the courts freely to anyone regardless of their wealth or ability to pay. We're getting so far away from that principle now. In the 70s the majority of the population would have qualified for legal aid but now it's nothing like that.
This has been a defence campaign from the outset. The HS would always argue for legal aid to be extended, to be more available. Why anyone who's accused of a crime should have to pay anything towards the defence of that until they've been found guilty is completely bonkers to me. I think it should be free at the point of delivery, especially for criminal legal aid because what's at stake is ultimately often the liberty of the individual.
Grayling is also attacking prisoners. He thinks prisoners don't deserve legal aid - that they should go through the very institution that is treating you unfairly or unlawfully to have their complaint decided - it's absolutely outrageous.
We always talk about legal aid as the fourth pillar of the welfare state and it's being eroded. But where the government wants a lawyer there's an open chequebook. Two QCs were paid £2 million between them last year.
What action is proposed?
We had the half day in January - in essence a strike. It caused a lot of disruption. The government, of course, said that something like 75% of all courts were open - they weren't operating to anything like full capacity.
The next date is 7 March. Again it's combined with barristers and solicitors. It's an entire day which Haldane has been campaigning for. I appreciate that a lot of people were nervous about it. We've got professional obligations which can make it very difficult.
There will be a demonstration outside parliament with people like Paddy Hill (Birmingham Six) and Shami Chakrabarti speaking. We're then going to have a march from parliament to the Ministry of Justice. That march will pass the Supreme Court and the Liberal Democrat headquarters. At their conference last year the Lib Dem delegates passed a motion saying these cuts should be stayed until they've properly reviewed. The Justice Alliance tries to remind Nick Clegg of this but he's said nothing in response.
Ian Lawrence, Napo general secretary, has supported us from day one and he's also speaking on 7 March. The unions, PCS, Unite, etc, understand what's going on better than most. In my view it's unfortunate that we've not been able to coordinate a date with them but in many ways it's extraordinary to see lawyers protesting in this way so I shouldn't be too negative.
Sign the Justice Alliance petition here: http://www.change.org/en-GB/petitions/david-cameron-uk-government-save-legal-aid-to-protect-access-to-justice-for-all
This version of this article was first posted on the Socialist Party website on 27 February 2014 and may vary slightly from the version subsequently printed in The Socialist.