As the Legal Aid Bill makes its swift and increasingly undeserved passing through the Houses of Parliament, Britain can only bow its head in shame to see the cutting of our £2 Billion yearly budget of Legal Aid. These changes introduced by Ken Clarke, Justice Minister, are being aroused by the need for Government to cut back its spending by trying to address its debt. With Britain’s total debt predicting to hit £10 trillion by 2015, the cognitive concept that we are ridding ourselves of an internally and internationally respected symbolic pillar of our justice system and society seems fairly incomprehensible when we are seeing only around £350m saving a year at the end of it all. The social and cultural cost of losing this incredibly significantly needed welfare pillar of England & Wales seems irrational and unnecessary for it is Legal Aid that so many vulnerable individuals of our society depend so deeply on, the very individuals which this Conservative Government argued that its cuts would not affect and the very individuals they wanted to protect . ‘There is no justice without social justice’ said Baroness Kennedy Q.C. recently in her lecture in Cardiff on the 23rd of November. Thus, the decision to axe Legal Aid cannot be just if the decision seems too abstract among its social context.

Firstly, I will identify the history of legal aid and its importance. I will then go on to the economic issues which have given rise to the decision of the Legal Aid cuts and I will then go on to describe whether they can be justified in the present social context and then, finally, conclude.

Historically, Legal Aid is a fairly recent phenomenon which has a close relationship with the welfare state as it has continued to ensure the protection of social, cultural and economic rights . Legal Aid has not existed independently of social views but instead its growth has been through the slow emergence of Government intervention, shifting away from laissez faire attitudes of the 19th Century and toward a notion of collective responsibility in society. This emergence could be described to have spurted in the post second world war era during the 1940’s. The emergence of overarching international and intercontinental committees focusing on the protection of human rights such as the creation of the United Nations and the European Convention on Human Rights attempted to prevent the atrocities of the Second World War happening again. The growth of legal aid continued through the 1950’s and 60’s as a result of welfare seen in Statutes such as the ‘Legal Aid and Advice Act 1949’ but by the 1980’s Legal Aid began to emerge from private industries. Today Legal Aid costs the taxpayer just over £2 Billion a year and is administered by the Legal Services Commission. The provision of legal aid was in the past governed by the Legal Aid Act 1988 but it is presently governed by the Access to Justice Act 1999 and its subsequent legislation. As we can see Legal Aid has become a growing integral part of our society. The fact alone that England and Wales have the highest per capita spend on Legal Aid than anywhere else in the world shows that Britain historically has placed justice at the heart of its constitutional and societal integrity, and it continues to do so. In order to try and justify the removal of such a pillar in our society, let us turn to the economic reasons why these cuts are happening in the first place.

To try and put the cuts of Legal Aid in a financial and economic context let us refer to the economies of our recent past. The United Kingdom could be described to have found itself in a downward spiral of, to use the sensationalist term, a gambling culture. A culture where capital borrowing and spending has become the almost norm- where our state has allowed for such puritan capitalist values to become so central and decisive in our daily lives. The colossal socioeconomic effect that this economic system has caused, could be, inter alia, attributable to the attitudes adopted by those Governments which followed the Iron Lady that is Margaret Thatcher. She was notorious for this nickname in the field of foreign affairs, a label given to her by the Russians, but the same attributes of the iron lady were present in her technocratic abilities in economics. The root of the downward spiral of Britain’s economics can partly be seen to begin from the arguably needed Thatcher regime of deregulation of industry and adoption of monetarist policies in the 1980’s which were inspired by Von Hayek’s economics. To put the decision of Thatcher in a further context, let us dig slightly deeper into modern Britain.

Since the end of the Second World War, Britain’s economy had been in a state of flux as a result of the post-war consensus comprised of stop-go Keynesian economics which involved keeping high employment as well as low inflation. This system was simply beginning to show its cracks in the late 60’s when the Wilson Government had to undergo devaluation but the flaw of this system was that, as Thorneycroft in 1958 described it, Britain had simply been “spending beyond its means” (Britain’s ever recurring theme). By 1979 the British economy was on its last leg, having experienced major difficulties involving industry and the unions which directly affected British society under Heath, Wilson and Jim Callaghan’s Governments. Margaret Thatcher simply had the courage that other British politicians simply didn’t, and that was rolling back government intervention in the economy. Similar plans and motives had existed even since 1952 when Rab Butler implemented plans under ‘ROBOT’ to strip the sterling free from fixed exchange rates as well as Thorneycroft’s motives to reduce Government Spending. Now having seen more of the background, was Thatcher’s deregulation in the 1980’s necessary? The answer is down to individual judgement. Deterministically, the answer to this perennial question is of little use in this issue as Britain experienced these changes regardless.

It is important to clarify that the cause of the situation that we are in today – having to make Government cuts- is not because of Margaret Thatcher’s decision to deregulate, but the economic decisions of the Governments which followed her. Britain thus changed in the 1980’s and it was the responsibility of the Governments which followed to ensure that Britain remained a competitive power in Europe. As Paddy Ashdown recently stated on the 21st of November regarding Britain’s economic stance towards Europe – we ‘borrowed to maintain living standards, because it was easier and more fun… We are faced with the same problem [as 15 years ago]… how to improve competitiveness and produce goods the world will buy, while now having to cut a huge deficit at the same time’. The Labour Governments between 1997 and 2010 saw copious amounts of borrowing to try and patch up the national deficit, copious amounts of borrowing to try and fulfil public reforms and it also saw our gold reserves being sold at an almost rock bottom price. It is therefore possible to see the ideological shift in Britain’s economics over the past half century and see that Governments have continually kept spending – why should legal aid suffer as a result of this?

It is not the vulnerable individuals of society who have, to use the term of Karl Marx, caused the ever ‘internal contradiction’ of Capitalism to implode. The Internal contradiction refers to the idea that the amount of capital available to those who do not own the means of production will never or should never exceed the amount of products that the same capitalist society produces. Well, the internal contradiction is always vulnerable to imbalance. The different Governments’ indecisiveness to react on careless borrowing meant that everyone could borrow and gain mortgages regardless of their credit history – the amount of capital available to everyone exceeded what could be produced and the internal contradiction received its imbalance. Thus, why should the omissive behaviour of Governments who failed to act on carefree borrowing punish society by denying individuals access to justice? Everyone has some rights both in Statute and in Common Law mainly thanks to the rights incorporated by the Human Rights Act 1998, but there is a belief that individuals are being ‘deprived of their rights’ because as rightfully declared by Lord Neuberger “…a right is valueless if you can’t enforce it” . How can those individuals who cannot independently afford legal advice access those rights if the most fundamental access to justice is being taken away; it is denying them of a constitutional principle.

Amendments to existing Legal Aid legislation may have been required to try and stop the exploitation of the legal aid funding system, but why should the collective suffer as a result of the inconsiderate and careless few? Although these views and questions of rhetoric may seem idealistically naive, the truth materially is that these changes will only clog up the arteries of our court systems with litigants in person – in effect the consequences of the Legal Aid changes could cost more than they may propose to save. I recently read: “ ‘do it yourself litigation will be as effective as do it yourself medication’- it will not work” . These words partly speak the truth. The amount of discontent that has come from members of the judiciary, members of the Bar profession and the public at large towards these changes are overwhelming. Peter Lodder, QC, the chairman of the Bar Council of England and Wales said that “These proposals will not save money. They will cost more, both socially and financially” . Lord Woolf, the former architect of the simplification and reformation of our justice system, stated that the changes ‘will deny the poor access to justice’ . Today Lady Hale, Justice of the Supreme Court, has warned that there are 'consequences on different levels'(Her speech can be read here). The amount of authoritative individuals of our society who have disapproved of the proposals are countless and, as in the words of Freddie Mercury (Who’s birthday would have been marked on the 24th of Nov.), ‘nothing really matters’ to the Government, they seem oblivious to this social world that surrounds them who abhor the changes. Again it must be repeated, there should be no justice without social justice.

Conclusively, it seems as these proposals of Legal Aid by Government are an offering to the public arena to show that professions and upper echelons of society are being punished for their callous economic activities of the past decade or two. Under Legal Aid cuts, it would be the legal profession suffering, with the criminal bar almost hollowing out completely. At present, it seems that Government are superficially tackling regulation of professions and superficially tackling spending cuts, yet something like Legal Aid is unnecessarily being axed to the most serious of degrees. The time has never been riper for correct economic regulation and Government spending reviews. Now is a time that the public at large feel most apathetic to socioeconomic and socio-political affairs. People are discontent with what is happening at the larger structural socio-political level of society – they feel that their actions as individuals of agency do not affect the wider picture, a deterministic attitude is being adopted. This is wrong, individuals must not abstain from involvement – there is voice in the collective. The fact that we are having financial cuts in the most fundamental areas of society such as welfare (to which Legal Aid can arguably form part) is only going to make the socio-political and economically apathetic more resistant to political and ideological reasoning by technocrats and politicians. Figuratively, these cuts by Government are worsening an already gaping wound of apathy. The decisions by Government to make cuts in the wrong areas of welfare, such as legal aid, is only going to make this apathetic wound grow a further intolerance toward the antibiotic like behaviour of our Governments – they all propose change to cure the infectious problem but they never finish their course of action, or they create a whole new problem which is what we will be experiencing with Legal Aid. Ultimately, it is never the right time for the wrong change.

By Philip Vasquez
HumanRightsTV Cardiff University Intern

Please refer to the Law Works legal aid debate on the HumanRightsTV website for more information on Legal Aid. Law Works is an independent charity which aims to increase the delivery of free legal advice to individuals and communities in need.