Sunday, 10 July 2011

Should we beat the poor with a stick?

The government are threatening, at a stroke, to demolish the legal aid system that has been in existence since 1947 by taking away, more or less completely, the right to free legal advice for the poor, save in exceptionally needy situations such as the victims of domestic violence, and child abuse. We are going back to Victorian times when, if you could afford it, you could have the best lawyer, whereas if you were poor, you might live in a workhouse and eat gruel. Grind them into the mire, why don’t we? After all they are disadvantaged, lacking in confidence, have poor self esteem, and are unlikely to fight back. I wonder if free legal aid remains for anyone enslaved by a feudal landlord, who objects to working 18 hours a day? Not sure about that. Will have to consult the Legal Aid Manual.

What arguments does the very warm and empathetic Ken Clarke postulate to justify his position?
  1. We spend more on our legal aid system than anywhere else in the world. Isn’t that awful? At one time our legal system was the envy of the world, not the shame thereof. Our national health system is also the envy of the world. I am sure foreign governments do not compare themselves with us and snigger at our welfare state. It is something to be proud of not to demolish.
  2. We waste countless hours and pounds sterling on court battles that benefit no one other than the fat greedy lawyers who simply wage litigation to line their own pockets. It is not exactly clear, but he is probably referring to Human Rights cases, where such fundamental principles as the right to family life, privacy, freedom, education, expression etc are involved. His boss Cameron is always complaining about how Human Rights cases are simply ridiculous, particularly when such worthless individuals such as prisoners are trying to get the right to vote, or, in human rights terms, “the right to participate in free elections”. If you look at the Direct Gov website under this topic, it mentions mediation, citizen’s advice bureaux and law centres, not solicitors – a significant omission.
  3. The government are intending to take away free legal aid for clinical negligence cases where you are poor, and cannot afford it. The case being used as a good example of where justice would not have been achieved without legal aid is, a father who waged a battle for his son who was the victim of medical negligence, and won compensation from the NHS in the sum of £8 million. Now if you look carefully, there is a theme here. Why should the government help the poor to bring proceedings against itself? Far better to prevent lawyers from making money out of the government, and grind the poor into the dirt where they belong.  What will the outcome be? Less litigation against the government so that they can cut back on health standards without fear of being embarrassed by critical court judgments.
  4. Use mediation instead of going to court. This proposal is meant to be a catch all to save the cost of litigation. It is eye wash and displays incredible naivety. Why?
    • Mediation has been tried for years in matrimonial cases, indeed it is compulsory in some situations. It works in some cases where the parties are willing. If they aren’t, because of the nature of the dispute, then, as the saying goes, “you can take a horse to water, but you can’t make it drink.”
    • There aren’t enough trained mediators to cope with all the litigation that exists.
    • If the parties do not accept the result of the mediation then they are back to going to court anyway.
    • Use “no win no fee agreements”, instead. Again a very na├»ve remark. Why?
    • Lawyers will refuse to deal with anything but the most straightforward of cases.
    • The difficult cases that often creative important legal precedent and advance the law will be abandoned.
    • Lawyers will simply not be prepared to take the risk of losing tens of thousands of pounds.
    • Whilst the government, thankfully, are intending to keep legal aid for abuse cases, the law would not be in the advanced and favourable state it is without the backing of legal aid. Cynically, I think that legal aid would have been removed for abuse also if they thought they could get away with it politically. It would, however, have been a step too far.
    • I work in the area of child abuse. If one is faced with a case costing between £30,000 and £50,000, at least, to take to trial on a no win no fee basis, then it takes a very brave lawyer with private wealth to do so.
So where are we up to? This coalition government, which is basically conservative in thinking, are intending to take away the rights of the poor, more or less completely in the area of civil law. In anything but a severe financial climate, they would simply not be able to get away with it. In the few remaining areas, funding will become so pinched, and income so diminished, that all but lawyers with separate private incomes (how many of those are there around today?), will be unable to survive.

Despite all the government propaganda about “fat cat lawyers” over the last few years hourly rates of pay have not gone up since 1991. How many businesses could survive without a price rise for 20 years? Indeed rates are coming down. One of the proposals in the legal aid consultation that will be implemented in October 2011 is to reduce all hourly rates by 10%. I do not have an accurate record, but I think this means that rates will go back to what they were in or around 1985.

I really don’t think I am being cynical when I say that the government are entirely fed up of being challenged by intelligent lawyers, who can use the court system to prevent misuses of power, and extract government funds, they would rather spend on other things. The process of obtaining compensation for negligence has been turned into a social evil, which is attempted only by the greedy rather than the needy. What is more, lawyers are like pariahs at the altar of Dickensian  extortion.

So should we beat the poor with a stick? No we shouldn’t, and neither should the government be allowed to get away with it. Even that bastion of social equality Mr. Ken Clarke…….