Who will get legal aid now?

Joanna Biggs

Legal aid isn’t the sort of thing people worry much about losing. Unlike schools or the NHS, it’s not a part of the welfare state many of us have had dealings with. The sort of people who use legal aid aren’t always very sympathetic: they’ve often done something wrong or foolish or both. The lawyers who represent them seem to be looking after number one. The system isn’t very old, but insiders talk about it in a combination of ancient-sounding phrases and arcane technical language. Yet legal aid deserves attention, not least because it’s one of the fastest growing areas of government expenditure, and so an irresistible target for deficit reduction.

The state spends £2.2 billion a year on lawyers to give advice to and represent people in legal cases: the coalition’s aim is to save £350 million of this, which will reduce the £163 billion deficit by 0.2 per cent. But even though the budget seems so big, cutting it isn’t straightforward: the European Convention on Human Rights contains a commitment to a fair trial, which means the criminal legal aid budget can’t easily be cut. The government’s solution – detailed in the Legal Aid, Sentencing and Punishment of Offenders Bill currently going through Parliament – is, first, to remove whole areas of civil law, like employment, immigration and welfare benefits. A 17-year-old mechanic paid £150, at 70p an hour, for his first month’s work on the pretence that those 50-hour weeks count as ‘training’ won’t be able to claim legal aid to challenge his employer. An eight-year-old orphan trafficked to the UK on a fake Congolese passport won’t receive public funds to help establish his immigration status. A 27-year-old soldier who lost a leg in Afghanistan won’t get help to claim back disability benefit wrongly reduced when he admitted he could stagger 400 metres. The current system allows claims for legal aid in most sorts of case, excluding a few areas such as conveyancing; the new plan is to disallow claims across the board, but make a few exceptions. Funding will disappear for divorces unless there is domestic violence, housing and debt unless you are about to become homeless, adoption, clinical negligence, immigration unless the person is being held by the state, consumer cases and compensation claims when you’ve been a victim of crime. For aid that is still allowed, including criminal cases, the government has already cut fees by an arbitrary 10 per cent, with the result that many small law firms, which run on margins tighter than that, will have to close.

The coalition has also found another way to reduce costs in criminal cases: people will no longer necessarily get face to face legal advice at the police station when they are arrested. More offences will qualify only for phone advice – and the phones aren’t always manned by solicitors. So someone accused of pushing an ex-girlfriend during an argument (common assault, carrying a maximum punishment of six months in prison) would only be allowed to speak over the phone to some sort of legal adviser.

The government also plans to move the financial goalposts: at the moment, legal aid is means-tested and available only to people who are on benefits or who earn less than around £17,000 a year: i.e. the very poorest. The government wants to raise the financial bar and stop people on benefits from qualifying automatically. As a result of all this, 550,000 people will lose out on legal advice, according to the government: instead they are supposed to go to Citizens’ Advice Bureaux, charities, trade unions and law centres, mostly places that are already disappearing following local authority funding cuts (Avon and Bristol Law Centre is under threat, Grahame Park CAB in Barnet closed on 28 September, and so on). If you can’t get any help, you can always represent yourself or – and this is what the government is hoping for – you could just drop your case.

The coalition defends itself: we have a deficit to reduce, its members say (or, rather, the ‘principal driver for reform is financial’), and besides, our system is much more expensive than others around the world and was expanded far beyond what was intended by the 1949 Legal Aid and Advice Act. More important, we are an excessively litigious and irresponsible nation: we don’t want to sort out our problems ourselves. The justice minister, Ken Clarke, says that from now on ‘people will instead use alternative, less adversarial means of resolving their problems.’ The legal aid minister, Jonathan Djanogly, a former City lawyer, is willing an ‘ambitious culture change’. Perhaps they imagine that if we all sit in a circle and share our grievances, without lawyers ruining it all, everything will be fine.

The government insists that the cuts are OK because people should be able to ‘present their own case’, yet its own study shows that those who represent themselves are younger and less well educated than those who get a lawyer, that they annoy the court staff and judges more, that their cases take at least twice as long, and that they generally lose. The lord chief justice has said that the changes will lead to ‘a huge increase in the incidence of unrepresented litigants’; one legal aid barrister told me that judges feel ‘sheer terror’ at the prospect. When I spent a day at City of Westminster Magistrates’ Court last month, a man classed as unfit to plead was told he was going to be sent to a mental hospital in Cardiff. There was no one to explain on his behalf, in measured tones and lawyerly phrases, why he wanted to stay in London, so he shouted: ‘I do not want to go to Cardiff! I live in London. I want to be treated as a human being.’ He was sent back down to the cells pretty quickly. A man who’d punched a woman and her husband in the face as he was stealing their taxi outside the Ritz – a criminal offence – had a legally aided lawyer. The prosecutor gave the facts briefly, then the man’s lawyer presented his defence to the court for 20 minutes, pausing between sentences for effect, telling us about his recovery from a steroid addiction and the baby he and his girlfriend were expecting. The magistrates sent him to prison, but he’d be out in time for the birth.

When Kevin Collins was brought up from the cells, it was already two hours after the court’s official closing time. The G4S security officers settled him into the front chair of the defendants’ booth and the usher announced that he was representing himself. The first thing Collins said wasn’t his name, date of birth and address but, to a guard: ‘Have they got microphones in here?’ The clerk started to address him – ‘I really can’t hear what you’re saying,’ Collins replied – and then went up to the booth, asking him to confirm his name, date of birth and address. He was charged with being drunk and disorderly. Guilty or not guilty? ‘I don’t know,’ he said. ‘Drunk but not disorderly.’ The clerk couldn’t accept that as a plea so she tried again: ‘Do you think you might have been a bit disorderly?’ He didn’t think so but perhaps. ‘Do you want to enter a guilty plea?’ she asked finally, exasperated. ‘If it means I can get out of here and have a cigarette, yes.’

The idea of legal aid, if not the system, is ancient. It’s there in Magna Carta: ‘To no one will we sell, to no one deny or delay right or justice.’ Since the 17th century lawyers have been encouraged to give a tithe of their time to working for free ‘in the public good’, which in practice meant that young lawyers took on poor people’s cases. Late Victorian philanthropists set up Poor Man’s Lawyer services in places like the East End, where you could get free advice, though not someone to represent you in court.

The First and Second World Wars produced the legal aid system more or less as we know it now. Overwhelming numbers of people wanted to get divorced after 1918, largely because the way women thought about themselves had changed so much during the war: they had earned a living and finally won the right to vote if they were over 30. At that time it cost £45 to get divorced in the High Court in London, where all divorce cases were heard, when the average wage was £50 a year (a Poor Person’s Procedure had been brought in in 1914 – volunteer solicitors manned a department in the Royal Courts of Justice – but it still cost £10). In 1939 Citizens’ Advice Bureaux were established to help both civilians and members of the armed forces with legal problems. The Law Society even set up a Service Divorce Department to help soldiers, sailors and pilots during the war. Divorce cost three guineas, and the government paid.

When Henry Betterton, a barrister who had been the Conservative MP for Rushcliffe in Nottinghamshire since 1918, was appointed chair of the special committee on legal aid and legal advice in 1944, the argument for legal aid had virtually been won. A compassionate Conservative, Betterton had been an enthusiastic member of committees which had done much to improve unemployment benefit and nurses’ pay. ‘The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance,’ his 1945 report concluded. The already existing free legal help had been ‘at best somewhat patchy’ and was now ‘totally inadequate’. From here on, legal aid would be available not just for poor people but also for those of ‘small or moderate means’: you would contribute if you were able but if not the state would step in; barristers and solicitors would be paid ‘adequately’ for their work and there would be legal aid centres across the country. The legal aid system wouldn’t be publicly owned; it would be a public-private partnership. Taxpayers’ money would be paid to small solicitors’ firms in order to provide a public service, the better to preserve lawyers’ independence from the state and to get small businesses back on their feet after the war.

Since the 1949 Legal Aid and Advice Act passed into law, there have been several expansions: in 1973 you could get free advice on any legal issue, so that problems could be solved before the courts got involved; in 1984 duty solicitors were provided in magistrates’ courts; and in 1986 everyone was given the right to speak to a lawyer if they were being held in a police station, no matter what they had done and regardless of their means. That was the high point: in 1979, 79 per cent of the population qualified for legal aid.

Since then, even though the entire legal aid budget would only fund the NHS for two weeks and hasn’t had a rise for inflation in four years, it has been thought unsustainable. The current government’s line is the usual one: Labour was so profligate, letting people sue one another left, right and centre, that we have to step in and get things back to sensible levels. But it was Blair’s Lord Chancellor, Lord Irvine, who capped the legal aid budget, moved to fixed instead of hourly fees and let some areas of law, like personal injury, fall out of legal aid to be replaced with ‘no win no fee’ deals: little snips that have caused hundreds of firms to drop out of the legal aid system (around 400 last year). But there was also an attempt finally to establish a network of legal aid centres under a Community Legal Service, which would provide advice from high street Community Legal Advice Centres (CLACs), supplemented by a CLA telephone helpline. The CLA revolution, drastically underfunded, never quite came to pass. New Labour, so many of whose front bench were lawyers, consistently attacked solicitors and barristers. Tony Blair (called to the Bar 1976) wanted to ‘derail the gravy train of legal aid’ and Jack Straw (called to the Bar 1972) complained of ‘BMW-driving civil liberties lawyers’. But New Labour’s attack wasn’t on the gravy train: it was on the ‘good’ lawyers, the ones who earn £25,000 a year helping the poorest, and the ones who spend their time trying to get people out of Guantánamo. The atmosphere had changed and the postwar ideal of cheap, decent legal advice had receded. As Steve Hynes and Jon Robins put it in The Justice Gap: Whatever Happened to Legal Aid?, ‘it has never been a universal service available to all who needed it, a legal services equivalent of the National Health Service.’ And it isn’t likely to be now.

Mitcham Citizens’ Advice Bureau was one of the first in the country, opening on 4 September 1939, the day after Chamberlain announced we were at war with Germany. When I visited, on a cloudy Tuesday in August, the chairs were set in a semi-circle following the bay window of the grey brick villa, set back from the green. Propped against the bottom pane was a circular sign that looked as if it used to hang outside: on a blue background there was an owl in white paint, around the edge the words ‘Citizens’ Advice Bureau’. It seemed like a remnant of wartime benevolence.

Some people think the CABs are an arm of government, but they’re individual charities, and each one is funded differently. Most of the money comes from local authorities and between 15 and 20 per cent from legal aid. Mitcham employs 20 full-time staff and 120 volunteers; people can drop in and see a volunteer on Mondays, Tuesdays and Wednesdays from 10 a.m. until 2 p.m. I sat with Olaide Osewa: she’s 24 and works part-time at a local solicitors’. There was a litre bottle of Coke by her side on the desk, placed among the rings left by countless mugs of tea. A woman with a heavy Chinese or Vietnamese accent came in for help with a name change on a lease and was sent to a solicitor; a young woman arrived in her lunch hour to find out whether her landlord was within his rights to waive her flatmate’s notice period and leave her having to pay the rent. Olaide can’t tell them what to do – volunteers train for a year and learn the boundaries – but she can tell them what the law is, and so what rights and responsibilities they have. (The young woman didn’t go away very happy: her landlord can do as he pleases.) It’s a triage service; about 50 per cent of people are sent elsewhere, to local solicitors’ firms or law centres; some are given appointments with the CAB’s two legally aided caseworkers, who take on problems concerning debt. Or they are told their problem can’t be taken further and they need to find another way of sorting it out. I wanted to say that the young woman should tell her landlord she would leave unless he enforced the notice period for her flatmate, but I kept quiet and stared at the filing cabinet in front of me (2000 A-H).

The last person to come in had had an injury at work, which caused a bit of excitement. Books came down off the shelf: there are 51 different state benefits and we went to meet him, books in hand, hoping we’d find one for him. He was Eastern European, dressed all in black, with a cutglass English accent: he pronounced ‘centre’ particularly nicely. He leaned forward, elbows on knees, and told his story. A steel beam got dropped on his knee and when he came back to work limping he was ‘politely’ sacked. He and his workmates had been carrying the beam, which was usually moved, rather more expensively, by a crane, as a favour to the boss; he’d promised them McDonald’s and Cokes on top of their £40 a day. The job centre had told him he wasn’t eligible for benefit as he’d only been in the UK for a year or so, but was that right? Could we help him to get some sort of benefit? He’d worked from the age of ten and had been in the police for seven years. ‘I’m a machine,’ he said, ‘but now I need repair.’ He was advised to put in an appeal at the job centre.

There seem to be so many legal issues tangled up here. The legal aid system treats a person not as a person but as a problem in a particular area of law. Are you a welfare benefits problem or an employment law problem? Once the problems have been identified and separated out you can be sent to a specialist, if there is one near you. (Because the legal aid budget is capped, the money is rationed: once every few years the Legal Services Commission, a government quango, invites bids and hands out contracts which specify how many legal problems a Citizens’ Advice Bureau or law centre or solicitors’ firm can take on. The LSC will be abolished by the new bill; it costs £120 million a year to run.) If you can find someone interested enough in your problem, they can give you legal help: explaining the law, writing letters, helping you with an appeal or putting in a few phone calls. For this the adviser will be paid a fixed rate according to the type of problem, but not its complexity: £207 for an employment problem, £150 for a welfare benefits problem. This is the sort of early advice that can head off a court case altogether, something you can’t usually manage on your own. If you try it the DWP or your employer won’t listen: volunteers at Mitcham talked of the magic properties of CAB-headed paper in summoning attention. For the government this type of help is cheap in itself and also saves money across departments by stopping the costs of problems mounting up: if you’ve lost your job how are you supposed to pay the rent or the council tax or the electricity bill? It can cost the council £3500 to evict someone. But there is a moral imperative too: we help people who’ve had a bad time because it’s more sensible and cheaper, yes, but also because we would expect help ourselves if something went wrong. I wondered what Tories might think of the builder with the busted knee: would they care very much if someone who wasn’t from the UK couldn’t access the benefits system very easily?

It is harder to save money on criminal legal aid because basic rights have to be protected. If you are arrested, you are entitled to see a lawyer. It doesn’t matter if you are a billionaire or homeless, you can have free independent advice before and during police questioning. The state is holding you and you are entitled to have someone to defend you. We are so used to having someone pout at the DCIs in The Bill and refuse to talk unless their lawyer is present that it can seem like the playing out of an ancient ritual. In fact the right was introduced in 1986 in response to miscarriages of justice in the 1970s. Gerry Conlon, for example, one of the Guildford Four, was deprived of food, clothes and sleep, and was beaten by the police until he signed statements confessing to bombing the Horse and Groom and the Seven Stars: ‘When I signed them, I believed I would later be able to retract them. I believed they could never be shown to hold water. I didn’t realise I was signing away my liberty for the next 15 years.’ It’s a practice that protects the police too: if a lawyer can confirm that the Police and Criminal Evidence Act Code C provisions have been followed, then the police evidence will stand up better in court.

The police would prefer to interview suspects without a lawyer. They tell people they don’t need a lawyer to sit in because it’s a straightforward case and once they’ve sent the file to the Crown Prosecution Service the charges won’t go any further; or they tell the accused that if they admit the charge they’ll just get a caution; or they claim it will take a solicitor ages to get to the station, when the legal aid contract says they have to be there within 45 minutes, no matter the time of day or night. Solicitors get a £150 flat fee for coming to the station and giving advice: they hear the accused’s story, they get a copy of the charge, they help him draft a statement or guide him through the police interview, they liaise with the custody sergeant. It’s arduous work, which as often as not takes place in the middle of the night with a drunk client, but it keeps small firms going. This is where they find their clients in the first place.

The new bill proposes more modifications to the right to see a solicitor at the police station. Since 2006 suspects have been allowed only telephone advice if they’re charged with something you can’t go to prison for and this has seemed to work fairly well, but the government may now extend the policy to crimes you could go to prison for. The government also proposes to introduce means testing: this seems like a good idea – why shouldn’t someone like Andy Coulson pay for his own lawyer? – but it has been shown to be impractical. Before 2006 everyone who came before the magistrates’ court without a lawyer used to be able to see a duty solicitor, paid an hourly rate from the legal aid budget for being there, but now you can get help only if you pass a means and merits test. You can skip the means test if you are a child or are on benefits; there’s also a much simpler version for people who earn under £12,475 a year. Introducing the test has had strange consequences: the nine-page form that asks about everything from your food bill to your investments has made it impossible for self-employed people like builders and plumbers to get legal aid; it has meant that a girl who was thought too dangerous to be given a pen was held for two weeks because she couldn’t sign the form; and it has made things more difficult for people who haven’t brought their National Insurance number and gas bills with them. It hasn’t produced much of a saving either. Jonathan Djanogly has said on the record that the government won’t get rid of police station advice but neither will it drop the clause that will make it possible for that advice to be restricted and means-tested. This comes at a time when the EU is trying to extend UK-like rights to free independent legal advice to police stations across Europe. Instead of backing the directive, Britain’s opted out.

The proportion of the legal aid budget spent on this sort of advice is pretty small: £228,412,000 on initial help for civil problems and £187,275,000 to give people advice in the police station last year. (The communities and local government minister, Eric Pickles, managed to find £250 million to ensure that everyone in the country had weekly rubbish collections 48 hours before the Tory Party Conference.) So how do we get to a legal aid budget of £2.2 billion? The most important driver of the legal aid budget is the structure of our legal system, in which two lawyers fight it out before a neutral judge. It’s the lawyers that are expensive, whereas in Continental legal systems the judges are more expensive because they do more of the lawyers’ work. But there are other factors too. The UK is a world leader in legal services: there are hundreds of lawyers in the City, creating a market in every branch of the law. The Crown Prosecution Service is far from perfect: legal aid costs mount up when the Crown has to be chased for documents, or when the defence turns up at court only for the Crown to adjourn the case to read the file. And we are a crime-obsessed society: we report more crime, we arrest more people, we interview and charge more, we bring more defendants before the courts and we lock up more than any other European country.

The largest proportion of the legal aid budget is spent on representation in the higher courts. Barristers conducting a case on legal aid are paid a fixed fee for basic casework and then by the hour, and cases can last for years. QCs can claim up to £4500 for basic work on a criminal case, and the most earned by a criminal barrister from legal aid last year was £841,960. It’s hard to defend this – and the Law Society doesn’t try, proposing that the government cap individual legal aid earnings at £250,000 – but the principle that produces these huge sums is a good one: the state wouldn’t employ an inexperienced lawyer to put its case across, so why should the person whose liberty and livelihood are at stake have a second-rate defence lawyer?

Jeremy Rosenblatt was paid £470,530 last year for legal aid work – the second highest earning barrister on the civil side. The Daily Mail illustrated its report on the government’s release of this year’s list of the ‘big wigs’ with a picture of Rosenblatt smiling and holding out a bottle of champagne, ready to pop the cork. He has risen from fourth in 2008-09, when he was told off by the Bar Standards Board for claiming a fee uplift for dealing with the Spanish legal system when he wasn’t.

Rosenblatt agreed to meet me for coffee on his day off at a café on Westbourne Grove, round the corner from his house. I was 20 minutes early but he was even earlier, sitting at a table that overlooked the hearses drawing up at the back gate of an undertaker’s – ‘it’s part of life’ – reading the Times with a cup of coffee. He urged me to try a pain au chocolat and checked whether the LRB had given me an ‘allowance’ before he let me get him another. He had wanted to be an architect but his father wouldn’t let him so he trained as a barrister instead, settling into the niche of international family law (dealing with what happens when one or other parent takes a child overseas), an area that opened up considerably when the Hague Convention on Protection of Children entered into force in the 1990s. (This sort of case will continue to be funded.) But he found the Bar a ‘deeply conservative institution’ that was ‘still indulged’ by the government. ‘Don’t attack me for earning,’ he said, and pointed out that he’s a ‘poor relation’ to both the ‘criminal boys’ and commercial barristers like Jonathan Sumption who can earn £5 million a year. He talked of calling the Legal Services Commission complaints line repeatedly until they told him what was going on with his cases (there is a four-month backlog at the moment) but also of being ‘dispassionate’ about his work. He whispered things to me while cupping both hands around his mouth in a loudhailer gesture. When I asked him how the annual figures get to be so high, he told me he took on a ‘massive number of cases’. Some areas of law will always attract legal aid: it’s not fair to leave a British child in Pakistan because the child can’t act for himself. And these areas are usually complicated and thus expensive.

Opposition to the government’s proposals has been strong: the green paper received 5000 responses from organisations ranging from the Derbyshire Asbestos Support Team, the Welsh Health Legal Services and the Spinal Injuries Association to Matrix Chambers, the Bar Council and Liberty. But proposed amendments to the bill drafted over the summer with the aid of the Justice for All campaign – a broad coalition against the changes – were rejected by the Legal Aid Bill’s public committee, whose purpose is to analyse it line by line. The proposed amendments were sensible and principled: domestic violence should be defined less narrowly, criteria for exceptional funding should be more generous, people fighting against the state should have a lawyer when the state has one, the phoneline should make provisions for people who aren’t as articulate as the state expects them to be. But since Ken Clarke had to make a U-turn on the proposals for sentencing in the other half of the bill, little could be given away on the legal aid side.

Since that defeat, the forces have begun to rally: there have been well-attended fringe events at the party conferences (the Lib Dem lawyers seemed particularly fired up, passing a motion to call for the reversal of cuts to social welfare law) and three legal challenges have been launched in an effort to stop the phoneline gateway for civil legal problems and the withdrawal of legal aid for clinical negligence cases as well as to minimise the bill’s impact on disabled people. The best hope is that the legally literate lords will amend the worst parts of the bill when it is sent there on 13 October. But the rest will pass as is. Clarke, the current MP for Rushcliffe, is looking on the bright side: ‘The changes we are making are, of course, financially necessary, but they will also make the system more sensible and civilised.’