The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large. There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’. These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.
Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.
Equality before the law is fundamental to ensuring access to justice. The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance. The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution. Without this ability we are not a liberal democracy. The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law. That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent). Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against. If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest. However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important). There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.
In criminal cases, it is about defending yourself against serious accusations made by the State. The consequences of conviction are, quite rightly, serious. Conviction can lead to a loss of employment and a loss of liberty. Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation. It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight. Legal representation is essential to ensure fairness (whether they are guilty or not). It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?
Judicial Review is very much disliked by the Government, as should be expected. Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal. It is an area under attack by the Government and it is vitally important. Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.
The need for access to legal aid does not just extend to cases which involve the State. Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result. Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless. The threat of litigation can prevent litigation. The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations. Without that effective recourse, people will be free to ignore their obligations with impunity.
Legal aid and access to justice go to the very heart of our constitution and democracy. It’s not a benefit; it’s a constitutional right Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.