Authors:Catherine Baksi
Last updated:2023-11-10
Passions rage despite bleak legal aid landscape
Louise Heath
Description: 45 small
There were mixed emotions at last November's Legal Action Group 45th anniversary lecture in London, writes Catherine Baksi. It was a celebration of the tireless work of the group and legal aid and not-for-profit lawyers and advisers who help swathes of vulnerable people, but also a recognition of the parlous state of legal aid funding, which has been slashed by governments of all hues.
Description: Baroness Kennedy and Sir Henry Brooke
Sir Henry Brooke and Baroness Helena Kennedy QC lament the state of legal aid
‘LAG has been a feature of my life since I was a teenager,' said Laura Janes, the organisation's chair, beaming with pride as she opened the celebrations at Freshfields Bruckhaus Deringer, the City of London firm hosting the evening. 'Since as long as I can remember there have been LAG magazines lying around my home and office,’ she said, thanking all the staff, magazine contributors and book authors, many of whom were in the audience.
But Janes went on to decry the legal aid landscape, which she said was at ‘an all-time low’, with spending down, the number of legal aid providers down and, most shockingly, the number of not-for-profits with legal aid contracts down by nearly 90 per cent. ‘The gap widens between the rich and the poor and we see our communities sinking into grinding poverty, homelessness, food banks, Christmas appeals for hungry children in London schools,’ she bemoaned.
We are in a state of crisis. We are seeing the dismantling of something really precious. I feel heartbroken about what is taking place.
Her concern over the worsening state of affairs was at the heart of the discussion between the two panellists: Labour peer and human rights barrister, Baroness Helena Kennedy QC and the retired Court of Appeal judge and, as the panel chair, writer and broadcaster Afua Hirsch, described him, 'octogenarian legal tweeter', Sir Henry Brooke. ‘We are in a state of crisis. We are seeing the dismantling of something really precious. I feel heartbroken about what is taking place,’ said Kennedy.
Where did it all go wrong?
While the pair agreed about the severity of the situation, they disagreed over who was culpable. Sir Henry excused Labour’s former lord chancellor, Lord Falconer, and Lord Bach, the chairman of the Access to Justice Commission, which recently published its report on the future of legal aid, and a former Labour legal aid minister, when Labour governments were wielding the axe. Rather, he blamed the economic constraints imposed by the Treasury.
‘If you read the history of legal aid, you’ll see that from 2000 onwards the Treasury put an unbudgeable limit on expenditure on legal aid,’ Brooke said. Ministers who were at the ‘beck and call’ of the Treasury had to comply with the ‘artificial limits’ imposed on them. It was, he said, Lord Bach’s experience of that regime that led him in 2015 to ask the new Labour leader, Jeremy Corbyn, to set up an independent commission of experts to provide a blueprint for change.
But Kennedy was having none of it. ‘I don’t think they deserve as much sympathy as you’re prepared to give them,’ she said, and she expressed a desire for a mea culpa from both of them.
Kennedy also put in the dock a previous New Labour lord chancellor, Lord Irvine,and his junior minister at the time, barrister Geoff Hoon. Of Hoon, she said: ‘We mustn’t let him off the hook – he had a very guilty part in all of this – he was the attack dog that Derry Irvine used to come out to the legal profession and to say: “You are all fat cats and you are all being overpaid.”’
The irony being that while legal aid lawyers were facing fee cuts, it was the commercial lawyers (of whom Irvine was one) who were ‘the fattest cats of all’, said Kennedy.
While the rot set in under New Labour, Kennedy’s greatest ire was reserved for the Liberal Democrats when they entered into a coalition with the Conservatives. Directing barbed comments to Andrew Phillips, a LAG founder and former Liberal Democrat peer, she said: ‘No party has clean hands in this ... but nothing was more disgusting’ than when the Liberal Democrats, who had taken the ‘moral high-ground’ when Labour made cuts, became party to the reforms introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. An Act, she said, that took a scythe to legal aid for whole areas of law in a ‘most horrifying way’.
The whole issue, Kennedy suggested, had to be seen in the wider context of an economic model that developed under Margaret Thatcher, based on lower taxation and a reduced role of the state, particularly when it came to the provision of anything under the banner of welfare. A model that Kennedy said she was shocked to see New Labour adopt.
The media too, said Brooke, bore some blame for enabling ministers continually to cut the legal aid budget. While health and education have taken the ‘political high ground’, he said, legal aid has been portrayed as taxpayers’ money for ‘fat-cat lawyers defending terrorists’.
Description: Panel discussion at 45th anniversary
Writer and broadcaster Afua Hirsch leads the conversation
That, he said, was a far cry from the picture painted by the lawyers who gave evidence to the Bach Commission (of which he was vice-chair). Theirs was, he said, a ‘world in which the law ought to be making a level playing field for those who need help against inefficiency, incompetence and stupidity’. And, he added: ‘The more I read, the more concerned I am that a lot of the legal aid bill is caused by rank bad decision-making by government departments.’
Review disaster
While Brooke was not hopeful that the government would be interested in the Bach Commission’s proposed establishment of a justice commission, he suggested the ‘rag bag’ of 25 other ‘hard-nosed’ recommendations would go some way to putting things right in areas where ‘things have gone seriously wrong’.
He was not optimistic about the outcome of the government’s legal aid review, which is scheduled to report in the summer. ‘It’s a disaster that it’s being done in-house. It is crying out for somebody charismatic to lead it and to behave like Lord Woolf did with the civil justice inquiry,’ he said.
They have already scraped the bone and they are now having another scrape.
It is, he suggested, unlikely to result in more money for legal aid. ‘The signs are that they are going to be confined to the money presently on hand, unless they can be persuaded that there is really such a crisis that they have simply got to go to the Treasury and get extra money.’ And the level of expenditure between 2010 and 2020, he said, will be down by 40 per cent. ‘They have already scraped the bone and they are now having another scrape.’
Brooke pointed to the impact the fee cuts are having on the future of the profession, citing the ‘dispiriting messages’ he has received from people unable to get a training contract or even paralegal work, because firms cannot afford to pay for them. Junior lawyers are not coming into the legal aid profession and the average age of criminal defence solicitors is around 50, he said, creating a ‘very serious situation’ in the medium term.
Kennedy predicted that the situation will get worse before it gets better, particularly given the impact of Brexit, which she said ‘is going to impoverish people and increase the problems for many ordinary people’. ‘The time has come for change,’ she said, and the profession must be the ‘engine of that change’, explaining why it matters and the impact on people’s lives.
She cautioned: ‘We are heading towards the situation in America, where people suffer injustice, but know they cannot go to the courts to secure their rights. So they swallow the injustice and are full of alienation and depression, putting their anger in the wrong places.’
The English legal system, she said, is highly regarded around the world, but she warned of the reputational damage being done by removing access to justice for ordinary people and by the denigration of those in the legal profession and a wider de-professionalisation.
She warned that ‘bad things are happening in our society now’ that are having ‘devastating consequences’ for the fabric of law. In the absence of legal aid, poor people, she said, are being ‘taken to the cleaners’ and the door has been opened to corruption within the legal profession.
Kennedy suggested that in the current financial climate, solicitors have been tempted to tell clients that they will be able to secure better representation for them if they ‘supplement’ the legal aid rates paid in criminal cases. She recounted the case of a family whose son had been convicted of a crime and who believed there had been a miscarriage of justice. Their original solicitor advised them that they had no grounds of appeal, but they went online and found an unqualified, unregulated person who took up their case for £50,000 and instructed a young pro bono barrister who had no knowledge of the money paid by the family.
‘They are working class people, they sold a car, different members of the family sold things and they scraped money together to pay for this person,’ said Kennedy. To an incredulous audience, she observed: ‘These things are happening up and down the country. People are being robbed blind.’
For Kennedy, these problems coincide with the result of changes that have taken place in higher education. Since polytechnics became universities, there has been an increase in the number of institutions offering law degrees, because, said Kennedy, they are cheap to deliver. And the increasing number of students leaving university with large debts are then charged more for the vocational courses, when the likelihood of most of them securing a training contract or pupillage is slight.
These young hopefuls, she said, are then ‘hugely exploited’, working as paralegals for ‘next to nothing’ in the hope of getting a foot on the ladder. It is, she castigated, a ‘scandal’ that needs to be addressed.
One positive ‘turning point’, in an otherwise bleak landscape, said Kennedy, is the support of the current Labour party leadership for legal aid, shown by the attendance of Jeremy Corbyn and his deputy John McDonnell at meetings and debates on the issue.
Brooke also saw a potential ‘political wind of change’ to provide legal aid for the families of the bereaved at inquests, following the forthright comments made recently by the chief coroner, HHJ Mark Lucraft QC.
Description: 45th anniversary reception with Andrew Phillips
LAG founder Andrew Phillips and guests at the reception
Lack of diversity
Looking back over his 45-year career, Brooke said he had seen many changes. But one area where things have not changed as fast as he had envisaged is diversity, with too few women reaching senior positions in chambers or on the bench.
Kennedy also bemoaned the lack of women and ethnic minorities in the judiciary and said ‘the change is harder than any of us ever thought’ because the ‘establishment doesn’t give up its ways of being readily. I thought the world would have completely changed [by now]. And it’s a great source of disappointment that it hasn’t’.
Brooke recalled the part he played in the career of Lady Hale, who has recently become the first female president of the Supreme Court – without his intervention her judicial career may not have got off the ground and history would not yet have been made.
He recounted: ‘Towards the end of 1993 when I was chair of the Law Commission, Brenda Hoggett, as she then was, was coming to the end of a very distinguished [academic] career. She was a natural for the High Court bench, she had missed out on two High Court family vacancies that year and I knew there was going to be one coming up in January and then nothing for a long time. I fought and fought and fought on her behalf in high places, and said it would have been an absolute scandal if they didn’t appoint her to the bench - and they did.’
Kennedy praised Brooke’s efforts in championing Hale’s career and observed that many women have not had someone ‘to talk them up’. But she feared that the current exposure of sexual harassment in Westminster and elsewhere might result in a ‘retreat from people mentoring and helping women’.
Kennedy also noted that most of the women who have made it to senior judicial posts have not come via the traditional route of taking silk and working their way up the judicial ranks, but have instead taken more circuitous routes. ‘Women did not go up the central staircase; they had to go out the window and up the drainpipe,’ she said.
Rounding off the evening, LAG director Steve Hynes emphasised the continued importance of the work done by the organisation, which he said had changed little over the years. ‘We might be a bit glossier, but we are still essentially doing the same thing – distributing information about the law, trying to improve standards, monitoring access to justice and doing research.’
He said: ‘We never thought 45 years ago that we would still have to be making the same arguments, but that’s what we are doing.’ Enabling people to understand and enforce their rights, he said, was the reason LAG came about and the reason it is still here. ‘We have to continue that fight – humanising, telling stories about the clients and what legal aid does for people,’ he said, encouraging greater activism, with more people making the arguments for access to justice.
LAG is grateful to Freshfields Bruckhaus Deringer for hosting the event and the reception and Reflex Litho for printing all the lecture material.