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Necessity or Ideology?Frederick Wilmot-Smith
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In​ the 12th and 13th centuries, judges would be sent out from Westminster every seven years to adjudicate on any disputes that had come about since their last sojourn. In 1292, in Shropshire, Alice Knotte complained that Thomas Champeneys ‘detaineth from her seven shillings in money and a surcoat of the value of three shillings’. ‘Alice can get no justice at all,’ she protested, ‘seeing that she is poor and that this Thomas is rich.’ She implored the judge: ‘I have none to help me save God and you.’

Alice then might be Alice today. What should she do? She cannot simply take the seven shillings from Thomas. Not only does the law forbid it, Thomas’s wealth means he probably has the power to take it back (or worse). So without access to a court, Alice has to rely on his goodwill for her money and her surcoat. This shows the first reason to care about access to justice, by which I mean being in a position to have your legal claims heard and enforced by a court. Such access is necessary if our rights are to have real content; without it, the rich and powerful can exploit the poor and weak. The same point demonstrates the need for access to legal advice: people need to know when they have been wronged, and how to go about getting redress.

Today, the people of Shropshire no longer have to wait seven years for their claims to be heard. But there is still a limited amount of court time to go around. We have to come up with some way of distributing these limited resources. Our courts generally proclaim themselves open to all, but the fair distribution of access to justice can, as a practical matter, be impeded in many different ways. Cost is the most obvious. In Alice’s day, presentation of a bill was free, so even the poor had some access to justice. Today, if she is unable to afford to go to court, her theoretical right to have her case heard will be small comfort. And the high quality of the English legal system has endowed it with an exorbitant price tag: court time and, especially, lawyers are expensive. This shows a second reason to care about access to justice: the distribution of such access is itself a matter of justice.

Legal aid – the state subsidy of legal services – is supposed to ensure that it isn’t only the rich who can vindicate their rights. The Attlee government’s white paper said that the system introduced under the 1949 Legal Aid and Advice Act was intended to ensure that ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right.’ Unlike the National Health Service, founded the year before, the scheme did not provide universal coverage. But roughly 80 per cent of people were eligible (this was measured by an income and assets test). Rising incomes swiftly reduced this figure, and by 1973 it had dropped to 40 per cent. Income tests were eventually amended accordingly: by 1986, 63 per cent of the population was eligible. And although legal aid wasn’t initially available in every case, most exclusions were in relatively recondite areas like breach of promise of marriage. Such broad coverage was inevitably expensive and, especially since the 1980s, policy-makers have persistently complained that the cost of legal aid is too high. Restrictions have been imposed on the types of case for which aid is available and the income test has been stiffened. By 2008 only 29 per cent of the population satisfied the means test. When the Jackson Report, an inquiry into the costs of the civil legal system, was published in 2010 falling incomes had raised the figure to 36 per cent. Lord Justice Jackson said then that it would be ‘quite wrong’ to tighten the eligibility criteria yet further.

In 2012, however, the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) was passed. It sought to cut £350 million from a legal aid budget of roughly £2 billion. (The Olympics cost nearly £9 billion; it’s estimated that HS2 will cost at least £40 billion.) Although the greater part of legal aid is spent on criminal cases, there are limits to the cuts that can be made there since the law requires that everyone receive a fair trial. Other potential methods of reducing the cost of the criminal system found no political favour. Kenneth Clarke, who was lord chancellor at the time, sought to reduce the length of sentences for serious crimes; David Cameron publicly overruled him. So, despite representing less than half the legal aid budget, civil claims – which are usually claims individuals make to remedy breaches of their rights – bore the brunt of the cuts. The strategy was to remove various categories of dispute. For instance, adult victims of medical negligence have lost all entitlement to legal aid. Family law also suffered heavily; divorce is now virtually ineligible (the cost and difficulty of obtaining a divorce was the main political motive for the 1949 act).

The cuts affected an estimated 623,000 people. Of these, the least well-off suffered disproportionately: 80 per cent of those affected were thought to be in the poorest quintile of society, and 54 per cent of benefits claimants who lost out in the changes were believed to have a disability. The inevitable effect of all this is that poorer individuals will find it harder to protect their rights. They will have to forego claims they have against others; perhaps worse, when a claim is against them they can be hauled into court even though they don’t have the means to afford a lawyer or extorted on the threat of what a court might order. Many not directly targeted by the cuts will feel their effects. For instance, a father who is prevented from seeing his child can no longer get legal aid to enforce access. (Another consequence is that prospective legal aid lawyers – especially the least well-off – will be discouraged from entering the profession. And so, a generation from now, we will yet again be faced with a lack of diversity in the judiciary. But that is another story.)

Some may be fortunate enough to receive free help from aspirant or charitable lawyers. If they aren’t, what should they do? They can represent themselves in court. A recent report of the Bar Council suggests that, in the wake of the cuts, more people are doing this. But, because the system is designed for lawyers, this creates problems for everyone. Judges have to work out whether arguments made by litigants in person have legal relevance. For this and other reasons, people defending themselves take up more court time than trained lawyers would, so delaying other people’s access to court. And the evidence indicates (unsurprisingly) that litigants in person fare worse than those with legal representation. (It’s said that a litigant in person has a fool for a client. Often, this turns out to be true even when the client is a trained lawyer: it can be hard to think dispassionately when one’s livelihood is on the line.)

Should we care? In particular, should we care that some will fare worse after the government’s reforms? With remarkable disregard for the rights of those who cannot afford representation, the government denies that ‘everyone is entitled to … a particular outcome in litigation.’ In keeping with this relaxed attitude to the protection of (certain individuals’) legal rights, it also suggests that many will, in light of the changes, ‘choose not to tackle the issue at all’. Quite so.

Under Laspo, the lord chancellor has the power to define the classes of people entitled to legal aid. The current lord chancellor, Chris Grayling, reacting in part to some high-profile cases in which foreign nationals secured victories in human rights cases funded by legal aid, recently issued a regulation that limited (with a few exceptions) the provision of legal aid to ‘residents’, those who have been in the UK for a continuous period of 12 months. Lord Justice Moses held that this residence test was unlawful. The lord chancellor’s supposed power to set a limit came from Laspo, and had to be justified by the powers granted under that act. Moses found that no such power is granted by Laspo. It follows that the regulation cannot have any legal effect: Grayling cannot make laws on his own.

Regardless of its legality, Grayling’s proposed regulation would unjustly prevent two classes of individual from obtaining legal aid. First, it would have the effect of disqualifying those so badly treated that they cannot prove their own entitlement. Consider P. (this is a real case). P. was an adult with severe learning disabilities who was starved of food and beaten regularly by his mother and brother. He was kept in a dog kennel outside the house. Thanks to legal aid, P. was able to secure representation and bring a claim before the Court of Protection, which (in the teeth of vigorous resistance from his family) determined that living with his family was not in his best interests. But P. would not have been able to prove that he had been in the country for 12 consecutive months and therefore, under the new regulations, he would not have been granted legal aid. In fact, a number of particularly vulnerable groups – trafficked people, for example, and the homeless – would be unable to protect their rights if the residence test were implemented.

Second, it would disqualify those who remain subject to the power of Britain’s agents – its armed forces, for example – or laws. Again, this clearly applies to trafficked people, as well as victims of British aggression abroad. Baha Mousa, an Iraqi citizen, worked as a hotel receptionist in Iraq. For unexplained reasons, British forces detained him. He was hooded, denied food and water, and beaten. By the time of his death he had 93 identifiable injuries on his body. No one now denies that Mousa’s legal rights were violated by British troops. (One British officer was found guilty of a war crime.) But his family could not afford to bring a legal claim. They were able to do so because legal aid was available to them. Under the new regulations, they would have been denied it. This is wrong: victims of British injustice should have access to British justice.

The lord chancellor argued that legal aid ‘is no more than a form of social welfare or benefit’. Lord Justice Moses rejected this claim for reasons specific to the case, but it deserves close scrutiny as a general proposition about the way we should understand legal aid. Even the friends of legal aid sometimes describe it as a pillar of the welfare state. This is not the way legal aid was initially understood. Injustice was not one of Beveridge’s ‘giants’; they were squalor, ignorance, want, idleness and disease. Its exclusion was partly a consequence of the postwar left’s beliefs about the best way to solve problems of social justice. Beveridge, Bevan and Morrison were particularly resistant to legal oversight of the social welfare system. They distrusted lawyers – Bevan feared ‘judicial sabotage of socialist legislation’ – and believed in political institutions. Broadly the same logic, inverted, led the Thatcherite right to enshrine various welfare entitlements as legal rights.* (Cameron’s Conservatives, interestingly, place great faith in centralised systems, such as universal credit.) So individuals can now bring legal claims to challenge administrative decisions denying them a particular benefit. The legal system is therefore a key means of ensuring that the distribution of the benefits of the welfare system is conducted correctly; if anything, legal aid should be called a foundation, not a pillar, of the welfare state.

There is another, more complex reason why legal aid should not be understood as a form of welfare. Our legal system imposes two burdens on every individual: duties (not to steal, not to defraud others, and the like) and the costs involved in vindicating rights (the price of hiring a lawyer, going to court etc). When people talk of legal aid in welfarist terms, they usually claim that the alleviation of these costs is analogous to the alleviation of poverty or disease. But there is a vital distinction between Beveridge’s giants and these costs. The giants are problems experienced regardless of the existence of a government or legal system; but the costs of bringing a legal claim are contingent on having a legal system, and are determined by the precise way the system is set up. The costs arise because the state demands that individuals resolve their problems by means of its legal machinery (Alice could not simply take her money, she had to bring a claim for it) – and the costs are so high because the government has privatised much of the enforcement process, with the price of lawyers dictated by a market.

Grayling’s argument may be based on a crude reductionism, which views all costs as created equal, or on the fact that without a legal system we would all face similar costs in the protection of our interests. However, the distribution of these costs would be quite different. Without a legal system to protect them, the people with the most assets would have the most to lose – and would have to spend the most to keep hold of those assets. So the creation of property rights in those assets, and their legal protection, greatly benefits these people – and they are burdened least by the system, in large part because they can afford the costs of legal protection. But the worst-off gain less from the legal protection of their meagre entitlements: not only did they have little to begin with, they are now forced to protect their interests by recourse to a byzantine and costly legal system. This demonstrates a crucial justification for legal aid. The least well off are owed relief from the costs of the legal system both by the state, which created the burdens, and (through taxation) by those who benefit by there being a legal system.

The passage of Laspo was intensely controversial and, to mitigate the risk of its undermining the justice system, two safety valves were included. The first was the provision of a power for legal aid to be granted in ‘exceptional’ cases that would otherwise fall outside the scope of the new regime. The lord chancellor drew up guidance on when legal aid should be granted. Recently, the guidance was found to be so restrictive – that is, the category of exceptions carved out by Grayling was so small – that it was itself unlawful. (Grayling is appealing this finding.)

The second safety valve was the continued funding of judicial review. Judicial review is a process designed to ensure that the decisions of public bodies, such as central and local government and the NHS, are taken lawfully. The individuals affected can challenge these decisions in courts and have judges review their legality. The government in 2010 rightly called this ‘a crucial way of ensuring that state power is exercised responsibly’. (This is not Grayling’s view: writing in the Daily Mail last year he described judicial review as ‘a promotional tool for countless left-wing campaigners’.) Days after securing the passage of Laspo, the government turned on judicial review funding, via the snappily titled Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations.

Most claims can be brought before a court regardless of their wisdom. Unique to judicial review is the requirement that a judge give permission before a claim can proceed. Permission will be granted only if a case throws up an identifiable and arguable issue. Judicial review is, therefore, peculiarly unsusceptible to abuse. The new regulations seek to eliminate legal aid payments in connection with claims for which permission is denied. At first blush, this seems sensible, but only if the reason permission is denied is that the case in question is pointless. And this cannot be assumed. Lawyers begin work before the permission hearing, and this means that errors are often – particularly in good cases – brought to the attention of the public authority involved. If the error is corrected before the permission hearing, permission will be denied. So the counterintuitive outcome is that permission can be denied precisely because the claim is a good one. The new regulation will deter lawyers from bringing such cases. And it will especially deter them from taking on cases which require a large investment of time and money at an early stage since the legal aid lawyer stands to lose most if permission is denied in such cases. Yet it is very likely that there will be such costs in cases of public importance. All this means that administrative illegality which could be corrected will lie undiscovered.

In light of this, it’s telling that Grayling, in evidence to the Joint Committee on Human Rights, was unable to give a single example of a case where a judge had allowed the judicial review process to be misused. Not only does the change seem unnecessary, its possible effects are difficult to predict. The Secondary Legislation Scrutiny Committee said that somewhere between 20 per cent and 69 per cent of applications could cease to be funded. The regulations did not require parliamentary approval or debate. Lord Pannick tabled a Motion of Regret in the House of Lords, and not a single member of the House – except the government minister Lord Faulks, whose defence of the cuts has been an ironic demonstration of the value of a capable advocate – spoke in favour of the regulations. Twelve speeches were made against them.

Why​ has the government made so many changes to legal aid? Two different accounts are offered. According to the first, the costs of legal aid spiralled out of control under the Labour government and, in the age of austerity, we can no longer afford to foot the bill. This is an argument of necessity: we’re broke and cutting is the way to stay afloat. According to the second, legal aid has been supporting pointless cases, and the government aims to improve the way taxpayers’ money is spent. This is an argument of justice: resources were going to the wrong people. Which is true? (Maybe both are. But it is a rare day when we both save money and have a better service at the end of it.)

The financial case has often been made in misleading terms. Spending on legal aid rose by only 2 per cent between 2000 and 2010; during that period, the economy grew by 15 per cent, and police spending rose by 50 per cent. There is also reason to think the case itself is unsound. For one thing, a lack of data has prevented accurate forecasts of savings: the government has admitted that it ‘cannot accurately estimate the amount of funding currently received by those who would not satisfy the residence test’, and so cannot say how much the test will save. But there is a more fundamental point. Cutting legal aid is unlikely to save much from the budget when considered as a whole, because so many other costs are dependent on it. If legal aid expenditure goes up, other costs (both within the court system and in the legal system as a whole) will go down, and vice versa. Early legal advice can clear up an issue and prevent the need to litigate; and, if individuals do eventually resort to legal claims, the advice will clarify the issue, simplifying the dispute. A Citizens Advice study in 2010 found that money spent on legal advice can save the state a great deal of money: it estimated that every £1 of legal aid expenditure spent on benefits advice can save £8.80. Recently, Graham Cookson and Freda Mold of the University of Surrey reviewed a number of studies from the UK and abroad, all of which found evidence of often substantial savings consequent on legal aid expenditure.

The government was undeterred. During the passage of Laspo, the Justice Committee suggested that the legal aid cuts could inflate costs in other parts of the legal system; the Ministry of Justice conceded that it had not examined the impact on other departments. Throughout, the government dogmatically maintained – this was one of the key planks of its argument – that we have the most expensive legal aid system in the world. The claim is specious, first because figures for spending are meaningless unless placed in context, for instance by giving spending per capita, and second because it ignores the cost of the court system as a whole and the way in which spending on legal aid affects costs in other parts of the system. When the figures are put in context, the UK is in line with many other countries. In 2012 it spent less than Germany, the Netherlands or Norway, and just a little more than Slovenia. But the government has yet to show any interest in the true cost of legal aid. In evidence to the Joint Committee on Human Rights, Grayling said the government could not estimate the savings made by stopping the funding of children’s legal aid because they ‘simply do not have the data from which to extract the information’. This also meant that they could not say how many children would be affected by the change to the law. None of this looks like evidence-led reform.

If the cuts truly were a response to our present penury, one would expect a plan to restore legal aid when the coffers are full again. We could start today: recent figures showed that the Legal Aid Agency underspent by nearly £120 million last year. But there is no such plan. All indications are that the purpose of the cuts is not, at core, economic. Instead, a particular vision for society – or, as Grayling would put it, an ‘ideology’ – has been cloaked in the garb of financial necessity. The vision has two key features. The first is a commitment to inequality of access to justice. The government’s rhetoric of reform has combined bad accounting with folk beliefs that our culture is too legalistic. Hand-wringing over ‘compensation culture’ and ‘health and safety gone mad’, often bolstered with anecdotal rather than empirical evidence, is testament to the influence of the idea that we should stop thinking of various social problems in legal terms. Trading on this, the government calls for a ‘culture change’, and argues that people should pursue non-contentious means of dispute resolution. Maybe we are an overly litigious culture, too quick to insist on our rights and unwilling to compromise in the face of reasonable disagreement. Maybe many disputes are made worse by the legal framework within which they operate. Maybe. But Clarke and Grayling didn’t plan to kill all the lawyers. Instead, the plan has been to place law out of the reach of the poor. In this raft of reforms, the government has not delegalised various classes of dispute; instead, various classes of people have been excluded from the legal system. Those who cannot afford justice must do without it.

The reforms​ reveal the government’s disdain for the rights of the least advantaged. But they also show that it seeks nothing less than emancipation from its legal duties. Since Laspo, three key changes to legal aid have been adopted (or attempted). One is the Criminal Legal Aid (General) (Amendment) Regulations 2013, which limit the legal aid available to prisoners. For instance, prisoners cannot now bring legally aided claims to challenge the standard of their accommodation. During the passage of these regulations, there were objections not only from the House of Lords – where 15 speeches of protest were made – but also from the chief inspector of prisons and the Parole Board, which said the regulations were ‘very likely to impede [its] attempts to deal with cases fairly’. The other two regulations I have mentioned already: the judicial review limits and the residence test. All three, in effect if not by definition, principally affect the most disadvantaged sectors of society. And all three are designed to limit the control individuals – and judges – have over the government’s actions. But then this government does not appear to take legal oversight seriously. While the Divisional Court was considering the legality of the residence test, Grayling wrote an article in the Telegraph in which he dismissed the legal challenge as the meddlings of ‘another group of left-wing lawyers’. The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2014 sought to reduce criminal legal aid fees by 8.75 per cent. Mr Justice Burnett recently found a key part of the lord chancellor’s procedure in making this change was ‘so unfair as to be unlawful’. The government’s media response claimed Burnett had merely highlighted ‘some technical issues’ about the process.

‘To no one will we sell, to no one deny … justice’, Clause 40 of Magna Carta promised nearly eight hundred years ago. A society without access to justice defaults on this promise. We are not even close to realising it. Instead, we are moving towards a state where most people are entirely incapable of securing the benefits the law promises. Can they be expected to continue to shoulder its burdens?

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Vol. 36 No. 22 · 20 November 2014

A footnote to Frederick Wilmot-Smith’s excellent artice about legal aid (LRB, 6 November). It was Kenneth Clarke, as lord chancellor in 2012, who summed up the ideological basis for destroying legal aid when he told the International Bar Association: ‘What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.’ Grayling inherited his policy, but lacks the political acumen to make it palatable. The measure of how unpalatable it is can be seen in a judgment on 31 October 2014 by Sir James Munby, the president of the Family Division of the High Court, and the UK’s most senior family law judge. In a case (for which there was no legal aid) between a family and a local authority which wanted to take their child into care, Munby said: ‘Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the state leave it to private individuals to ensure that the state is not in breach of the state’s – the United Kingdom’s – obligations under the Convention? … It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.’ For Grayling, if not for Clarke, part of the ‘solution’ appears to be withdrawal from the European Convention of Human Rights – so that the state no longer has obligations to ‘extremely litigious’ and poor parents who can’t pay for lawyers to help them keep their children.

Francis FitzGibbon
London WC1

Vol. 36 No. 23 · 4 December 2014

Frederick Wilmot-Smith describes the legal system as ‘a key means of ensuring that the distribution of the benefits of the welfare system is conducted correctly’ (LRB, 6 November). This hides the lengths the government has gone to to deny justice and subsistence benefits to some of the poorest people in the country. Last year it introduced an additional step into the already slow benefit appeals process so that people who have had their Jobseeker’s Allowance sanctioned or their Employment and Support Allowance stopped, leaving them with no income, would be subject to an internal review before being able to make a legal appeal. This additional step can add months to a process that is already too slow to address a very urgent situation. The legal notion of innocent until proven guilty does not apply in the benefits system, which gives out punishment before a claimant can put forward their case.

The legal system as the foundation of the welfare state was significantly undermined in March 2013 when the government, supported by Labour MPs, rushed through the Jobseekers (Back to Work Schemes) Act, in order to overturn a decision by the High Court which had ruled that the government had illegally sanctioned an estimated 170,000 people, denying them a total of £130 million. The DWP justified the retrospective legislation on the basis that, were the £130 million to be repaid, it would represent ‘poor value to the taxpayer’. They also threatened collective punishment of benefit claimants, stating that ‘further reductions in benefits might be required in order to find the money to repay the sanctions.’ The legal system here was not able to provide justice to the hundreds of thousands of people illegally sanctioned.

Izzy Köksal
London SW9

The government’s changes to legal aid and proposed abolition of the 1998 Human Rights Act have received extensive publicity but its chipping away at the Equality Act of 2010 has gone largely unnoticed. First, those wishing to quiz their employers about possible discrimination on grounds of race, sex etc are no longer entitled to receive an answer within eight weeks. ‘Evasive or equivocal’ responses can still be brought to the attention of an employment tribunal, but it is no longer possible to argue that discrimination can be inferred when an employer doesn’t respond within a specified period. Employers are now asked to respond only within a ‘reasonable time’ – and that is as long as a piece of string.

Second, the government is in the process of removing the power of employment tribunals, where they find discrimination, to recommend that the employer concerned take steps to change its ways. From now on tribunals will only be able to recommend that the employer deal with the discrimination as it affects the complainant, not ‘any other person’. In the majority of cases the complainant will already have left the company by the time the tribunal makes its judgment, so whatever wider recommendations it wants to make will be pointless.

These two measures will reduce the chance that claims will be made, and, if they are made, that they will be treated justly. What’s more, as has been widely reported, the fees to set up a tribunal are now £1200. There is an exemption for those on low incomes, but savings are taken into account. The TUC report from June, At What Price Justice?, draws on official statistics to show that there has been a sharp drop in the number of claims since fees were introduced. The journal Labour Research stated in September that ‘sex discrimination cases have dropped by 80 per cent; race and sexual orientation claims by 60 per cent; and disability discrimination claims by 46 per cent.’

Chris Purnell
Orpington, Kent

Vol. 36 No. 24 · 18 December 2014

Perhaps no one will be as pleased as Chris Grayling to read Frederick Wilmot-Smith’s attack on him (LRB, 6 November). ‘Upset the lefties and you must be doing something right.’ But it does not follow that ‘upset Grayling and you must be doing something left.’

Left-wing lawyers defending legal aid do not always tell the whole story of how it started. The Legal Aid and Advice Act of 1949 came after the Rushcliffe Report but did not completely follow its recommendations. Rushcliffe envisaged a national network of law centres staffed by salaried lawyers. That did not happen. Instead the Law Society was given control of the scheme and doled out the money to its members in the high street. The Law Society could have used the money to set up its own salaried service but never tried to do so.

The Act did not touch criminal cases. They continued under the 1903 Poor Prisoners’ Act (updated in 1930). An attempt to introduce salaried public defenders was made in 1919 but the culture and class interest of the legal professions stood in the way of that development for another eighty years. In 1963 hourly rates replaced fixed fees. Writing in 1966 Lord Widgery confessed that the taxpayer was getting poor value from a system designed to protect vested interests: ‘The chief advantage of the public defender system is that it is cheap,’ he noted, ‘but we should also see that one of the most serious objections to the public defender is its effect on the criminal Bar. The effect should almost certainly be the shrinkage of the independent criminal Bar.’

It’s easy to understand why conservative lawyers would relish public subsidy of private enterprise, but how bizarre that welfare state lawyers should argue to the same effect.

Our adversarial system is too dependent on lawyers, too expensive and too inefficient. It creates an excessively large prison population (if that could be reduced there would be serious savings). Radical reform requires reconsideration of the purpose of criminal law and the way it works. John Langbein, in The Origins of Adversary Criminal Trial (2003), and Richard Abel in English Lawyers between Market and State (2003) showed, respectively, that the adversarial system leads inevitably to a ‘truth deficit’, and that supplier-induced demand and moral hazard render the economics of legal aid inherently unstable. Langbein closes his argument:

European criminal procedural systems became hybrids of European and English, but they retained their defining feature, the principle that criminal courts must have the duty and the authority to seek the truth. In England, by contrast, the well-meaning reforms of the 18th century that resulted in adversary criminal trial had the effect of perpetuating the central blunder of the inherited system: the failure to develop institutions and procedures … that would be responsible for and capable of seeking the truth.

Finding the truth means acquitting the innocent as much as it means convicting the guilty. David Rose’s In the Name of the Law: The Collapse of Criminal Justice (1996) shows how the German inquisitorial system establishes enviably high conviction rates. That is why it is trusted by the public. Even better, miscarriages of justice are less likely:

The alternative to the adversarial model is an ‘inquisitorial’ system in which the objective search for truth becomes an avowed public purpose not a by-product generated by chance. In the halcyon days of 1991, as Home Secretary Kenneth Baker established the Royal Commission, there was widespread speculation that a radical shift in this direction might emerge. One of the Commission’s first acts was to order research into two nearby jurisdictions which broadly follow inquisitorial principles, France and Germany. The authors of this study, published in 1992, reached several immediately striking conclusions. First they found that in neither country was it likely that miscarriages of justice such as the Guildford or Birmingham cases would occur. Second in contrast to the stratified and often vexed relationship between the different actors in the criminal process in England, on the continent the relationship was marked by a ‘high degree of confidence, and of co-operation and mutual trust’. Finally public confidence in both systems remained high in their respective countries and in the German case the conviction rate was as high as 90 per cent.

Our system cannot cope. It costs too much. Efforts to save money will reduce access to justice, they will force many practitioners out of business, abandoning their clients. It is also inefficient: a low conviction rate requires a high rate of incarceration to maintain the principle of deterrence. Too many prisoners, too many suicides in understaffed prisons. No prison education. No effective literacy programmes. No books. No aftercare. Defendants trapped in a revolving door; poverty and personal inadequacy, police station, court, prison and then back round again while professionals protest that throwing more money at the status quo will make it work better.

Grayling’s cuts are permanent, and they make a shift towards inquisitorial procedure inevitable. In his lecture ‘Reshaping Justice’, which he gave in March, Lord Chief Justice Thomas of Cwmgiedd said:

We have to keep an open mind even on radical options. For example, to some a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst doing so within limited and reducing resources that have to be distributed equitably amongst all those who need to resort to the courts. It might be said by them that to attach to it the label of ‘inquisitorial’ was doing it a disservice, as it was really little more than the active interventionism characteristic of much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial, because the essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward.

Finally, the constitutional advantages of having investigators ultimately accountable to the judiciary must be counted too. Would Plebgate have occurred if police officers had known their evidential handiwork would be compared with videotape by a juge d’instruction? Would Blair be so comfortable if he’d got the treatment Italian prosecutors gave Berlusconi? Would a judge having oversight in sensitive investigations have ever permitted undercover police officers literally to embed themselves with the suspects against whom they were seeking evidence?

Mourning the past will not stop Grayling. Cuts will occur. If justice is to be administered fairly and efficiently it will have to become more inquisitorial. Left-wing lawyers had better calculate what they can contribute to a radically reformed regime.

Austin Mitchell
Grimsby

Vol. 37 No. 2 · 22 January 2015

It’s a pity that Austin Mitchell is so hostile to ‘left-wing lawyers defending legal aid’ since he is one of the few opposition members of the Public Accounts Committee, which is examining the effect of civil legal aid cuts (Letters, 18 December 2014). His letter scorns concepts like access to justice and equality of arms and instead elides two separate issues: first, whether a public defender system would be better than giving legal aid money to private lawyers; second, whether an inquisitorial system in the courts would be better than the current adversarial system.

Like many legal aid lawyers, I started off working in a law centre, but I ended up running my own firm of solicitors for 25 years. This was not because of any ‘relish’ for the ‘public subsidy of private enterprise’ but because of the lack of resources and career progression in law centres. Far from growing as a counterweight to the cuts, law centres have suffered even more than private firms: ten have been closed down in recent years. Law centres and public defender systems which are underfunded and undervalued result in miscarriages of justice and poor quality service for those without money. One only has to look at the US Public Defender Service, where lawyers straight out of college represent people facing the death penalty, and fail, inevitably, to do so properly. I (and I suspect many other legal aid lawyers) would have been happy to work on a salaried basis for a well-funded and independent public service, but this was never going to happen. Even before the cuts, it would have been more expensive than paying private lawyers and making them do their own financial management. I stepped down from running my firm, Christian Khan, in 2010, precisely because this was the side of things I disliked most. To compare running a legal aid firm with ‘private enterprise’ displays a real ignorance of the problems involved in dealing with the Legal Services Commission (the Legal Aid Agency, as it now is): bureaucracy, long delays in payment, unfair decision making, to name a few.

Mitchell says a shift to an inquisitorial procedure is inevitable. He cites the ‘enviably high conviction rates’ in Germany, which are as high as 90 per cent, and claims – somewhat inconsistently – that fewer people will be locked up under an inquisitorial system. I served on a jury at Wood Green Crown Court last year and was extremely impressed by the care and thought with which my fellow jury members approached their task (in the end, we convicted). An inquisitorial system would take away the right to be tried by your peers and hand it to a judge. It would be catastrophic for the legitimacy of our criminal justice system. The high level of incarceration is down to the decisions of judges, to whom Mitchell wants to give more power, and to the lack of options open to them, because of government policy. And the situations that he claims would be solved by inquisitorial courts – Plebgate, prosecuting Blair, undercover police – would of course not be. It isn’t just an idle generalisation to say that judges are always going to be more deferential than juries.

As Frederick Wilmot-Smith made clear, the legal aid cuts are not about saving money (LRB, 6 November 2014). The amounts saved are very small. They are ideologically driven, intended to prevent challenges to government by poor people facing savage welfare cuts.

Louise Christian
London N16

Vol. 37 No. 1 · 8 January 2015

As Austin Mitchell points out, the chance was missed in the 1940s to set up a national network of law centres (Letters, 18 December 2014). However, from the 1970s onwards law centres employing salaried lawyers came into existence in many boroughs (Camden, Kensington, Carlisle, Haringey, among others), largely funded by local authorities and specialising in welfare rights, employment, housing and immigration law.

Law centres are locally controlled, often organised as collectives, and employ both fully qualified barristers and solicitors, lay representatives (welfare rights officers, for example) and volunteers. They advise in detail, prepare cases and represent in court or on tribunals. In general they do not charge their (largely poor) clients fees.

It would cost only a fraction of the remaining legal aid budget to expand the existing patchy network of law centres into a national system. This could be done by imposing a duty on borough and district councils to allow the establishment of law centres in their areas and to fund them.

Chris Purnell
Orpington, Kent

Perhaps Austin Mitchell forgets that there are inquisitorial judges in the English legal system; they are called coroners.

Robert Forrest
Boston, Lincolnshire

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