Justice in a time of austerity: the lives of people already in difficulty are made much more difficult by cuts in legal aid
Daniel newman and Jon robins discuss how poverty and social inequalities are embedded in a failing justice system. They argue that denial of access to justice is too often a catastrophic stage in the life of a person and their family.
There have been a number of studies on the impact of austerity policy and the devastation caused by its name. However, the sensitive subject of access to justice and, in particular, the cuts in legal aid in 2013, has often been overlooked. The legal aid scheme was wiped out as a result of so-called LASPO cuts (as in the Legal Aid, Sentencing and Punishment of Offenders Act 2012). The Coalition Government’s flagship legislation was based on one idea: to cut £ 350million a year out of a total budget of £ 2.1bn. This has been achieved by removing public funding for advice on social protection law: employment, family law (unless there is evidence of domestic violence), housing (except where there is a risk of homelessness), immigration and asylum, and social Security benefits. Such sweeping cuts took place when the coalition government imposed its austerity policies on the UK.
At the time, LASPO represented the largest reduction in the legal aid scheme since its introduction as part of the welfare state. What remained was that which could not be deleted because of the modest protections offered by the European Convention on Human Rights. The 2013 cuts therefore represent the death of an idea: the definitive rupture of the link between legal aid and the welfare state. Nonetheless, commentators often understand that the legal aid crisis is exclusively about our “broken” criminal justice system, and far too often dismiss legitimate concerns as the special pleadings of “big cats” lawyers “catching on to the train.” the sauce “. Still, defense attorneys haven’t had a pay raise for more than two decades – and even suffered an 8.75% fee cut in 2014.
The subject of our book is the gutting of our system of access to justice in civil and family courts. In 2018 and 2019, we traveled to England and Wales to interview people about their experiences with the justice system. We conducted our interviews in different settings, including a food bank in a church hall in one of London’s wealthiest neighborhoods; a community center extending from the old Magistrates’ Court in a former mining town in the South Wales valleys; a homeless shelter for the homeless in central Birmingham; an impeachment service for asylum seekers in a town on the south coast of England. We also conducted interviews in MPs’ offices, counseling agencies and court waiting rooms.
The people we spoke to were the ones who fell through the breaches. Many had never seen a lawyer, let alone received legal aid. Some would not be eligible. It is quite possible to be poor and not qualify for legal aid under the narrow terms of the means test. Even if they were eligible, they might not be able to find a lawyer or (most likely) their case would not have been covered by the post-LASPO program.
Our journey began at the Stratford Hearing Center, a magistrates’ court in east London, where we followed housing service adviser Simon Mullings. It is difficult to imagine a judicial process where the stakes are higher than losing the roof and, yet, where access to justice is more threatened. Housing law specialists work within the framework of the Justice Department’s Home Ownership System. The bond regime means that people defending possession proceedings can (theoretically) get same-day help in court. They provide immediate, face-to-face help for those at risk of losing their home. Duty counsel will usually request an adjournment for a short time in an attempt to resolve the matter in a way that prevents a tenant from losing their home.
There were twelve cases of possession of rent on the housing list for the morning session. On a busy day, Mullings could see up to twenty people. “It can be manic,” he told us as we sat in the duty counsel’s office next to the court. “You are literally running between the guard room and the courthouse, constantly talking to housing officers and bailiffs.” It is a confusing experience for tenants who fear losing their accommodation. They don’t know what to expect and don’t know whether lawyers like Mullings are friends or foes. “Half of them think you are the judge,” he explained between the clients. “I have people asking me if they are going to go to jail today.”
Although the government is preserving public funding for homelessness cases, requests for legal aid in such cases have fallen by a third since the cuts. This came at a time when the number of rough sleepers had increased 165% since 2010. Meanwhile, the legal advisory sector has been decimated. At the time of our research, almost a third of legal aid areas in England and Wales had one or no local housing legal aid advice provider.
What we saw in Stratford was conveyor belt justice. The judge has to go through his list and the clerk is there to make sure. “If I’m not there, the judge is presented with an experienced housing officer who has all the papers and a tenant who is often scared,” Mullings told us. Housing officers can “push judges to make an order that they wouldn’t otherwise”. The consequences could be an eviction or the tenant agrees to repay arrears that he cannot afford which means he will inevitably be back in court.
Our year of research coincided with a two-week fact-finding mission to the UK by Philip Alston, UN rapporteur on extreme poverty and human rights. According to its final report published in 2019, one in five people in the UK lived in poverty and nearly four in ten children would do so in the next two years. Alston cited the 17th century English philosopher Thomas Hobbes to say that their life was likely to be “lonely, poor, wicked, brutal and short.” He said the austerity policy, including the deployment of universal credit, had contributed to the “systematic impoverishment of millions of people”. Work and Pensions Secretary Amber Rudd threatened to file a formal complaint about her “barely credible” report.
In a striking but barely noted observation, Philip Alston identified the “dramatic setback” of legal aid after LASPO as one of the causes of our country’s “systematic” impoverishment. He was specifically talking about the impact of the 2013 cuts to legal aid.
Note: the above is based on the authors’ new book, Justice in times of austerity: stories of a system in crisis (Bristol University Press, 2021).
about the authors
Daniel newman is Senior Lecturer in Law at Cardiff University.
Jon robins is an award-winning freelance journalist, author and lecturer at Sheffield Hallam University in the Department of Law and Criminology.
Image Credit Featured: Issue 10 on Flickr, Prime Minister David Cameron and Deputy Prime Minister Nick Clegg at their first joint press conference. May 12, 2010, shared under a CC-BY-ND 2.0 license.