Legal aid's last stand
Posted on April 18, 2012 by Louise Restell
Legal aid might not be dead yet, but it is certainly on life support. The route to justice for thousands of people, including children, victims of domestic violence, disabled people appealing decisions to cut welfare payments and patients who have suffered at the hands of a negligent doctor, is slowly being choked off. And yet there has been more press coverage about having to pay VAT on a hot pasty.
This is a serious omission on the part of the press, but an understandable one. With the government propelling us faster than one would have thought possible towards hell in a handcart it must be difficult to know just what exactly to focus attention on. Legal aid doesn't hold the same place in the nation's heart as the NHS but it should do. We will surely notice it when it's gone.
Despite the media silence, a quite extraordinary range of organisations has squared up against the proposals, including the Law Society, the Bar Council, the Children’s Society, Scope, Shelter, Mumsnet, the Fawcett Society and Amnesty International. Their campaigning ensured the House of Lords forced 11 amendments on the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) – the heaviest series of defeats for a government in 50 years.
The Justice Secretary, Ken Clarke, has not been intimidated by this alliance and clearly thinks he knows best, having yesterday urged MPs to take care ‘before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary’.
MPs’ consideration of the amendments peers made to LASPO was limited to just five hours, a travesty considering the effects it will have. The government overturned all but three of the defeats it suffered in the House of Lords: accepting the new director of legal aid casework should be independent; that legal aid should be preserved for appeals to the upper tribunal, court of appeal or supreme court in welfare benefits cases; and amending the definition of domestic violence.
And so, unless the Lords can reassert themselves next week, the future looks bleak for claimants who rely on legal aid or a no win-no fee agreements to bring their case:
Sophie, a 19 year old with mental health problems whose bank account was used without her knowledge by a thief to launder £20,000 would be unable to challenge the bank’s insistence that she was liable for the sum.
The tens of thousands of claimants in the Ivory Coast who had been injured by the illegal dumping of toxic waste by Trafigura would be unable to bring a case against the company, which has reported revenues of $121.5bn compared with a country in which 42.7% of the population lives in poverty.
The welfare unit at Islington Law Centre will be unable to get legal aid to challenge decisions about entitlement to sickness benefits, even though they are successful in 84 per cent of the appeals they bring, suggesting the problem is with government decision making, not the legal aid budget.
Victims of the extremely unpleasant and deadly disease mesothelioma, caused by inhaling asbestos fibres, will have to pay to bring a claim, effectively fining them 25 per cent of their damages, money intended to ease their suffering.
Jess, a single parent with mental health issues, alcohol problems and who was self-harming, would have been unable to get the debt advice that helped her avoid court proceedings and alleviated her depression.
Children who are victims of clinical negligence, unless during birth, will not be eligible for legal aid, including, for example, brain damage caused by misdiagnosis of meningitis.
The parents of David, an autistic child excluded permanently from school following an outburst due to his condition, would not have been able to get the legal help needed for a successful appeal and so leaving their son without the vital specialist support he needs.
The specialist law team Actions Against the Police has warned that removing legal aid from civil claims against the police will mean many cases, including police shootings and beatings, won’t be brought at all.
As if this roll call of misery wasn’t enough, many opponents of the bill feel ministers have not treated it with the seriousness it deserves. During the debate, Jonathan Djanogly described lawyers for mesothelioma sufferers as running ‘something of a racket’. It also appeared from the tweets of shadow justice secretary Sadiq Khan MP that the minister was less than attentive as speaker after speaker opposed government proposals for industrial disease victims.
As I see it, the problem with the justice ministers is exactly the same as that pervading the government as a whole, they simply do not understand the lives of real people. This was best expressed by the outspoken Tory MP, Nadine Dorries, who said of David Cameron and George Osborne:
‘The problem is policy is being run by two public school boys who don’t know what it’s like to go to the supermarket and have to put things back on the shelves because they can’t afford it for their children’s lunchboxes. What’s worse, they don’t care either.’
It’s fair to say that I don’t know much about how it feels to get so hopelessly in debt you can’t see a way out and fear you will lose your home; nor how it feels to be told you have to go back to work even though you have been too sick even to walk to the shops for months.
And I have no idea what it feels like to find the very people you assume are there to help you – doctors or the police – instead inflict harm, either deliberately or through negligence. I have no idea what it feels like to watch someone you love undergo enormous suffering as they die of mesothelioma caused by a careless employer.
I don’t know what it’s like trying to escape an abusive relationship, or fight a vicious divorce against a wealthy partner, or flee a murderous regime only to find my safe haven wants to send me back, or suffer at the hands of a rich, powerful and unscrupulous multinational that is exploiting my country.
But I realise how lucky I am and I realise it is the duty of a civilised society to help and protect the most vulnerable. As Lorna Reid, welfare benefits adviser at Islington law centre put it:
‘Supporters of LASPO may prefer to airbrush our clients’ reality out of their landscape, but that doesn’t make them disappear’.