David Renton looks at the ongoing attack on legal aid and considers where socialists should focus resistance.
After thirteen years of Conservative government, the legal system is torn by crises. That’s not unusual; every other public service is also suffering. What is different about the legal system is the way in which its problems are shaped by the changing way in which right-wing ideology conceives of the law, some of the time eulogising and protecting parts of the court system, more recently speeding up the sense of general decay.
The legal system under the coalition government
Under the 2010-15 coalition, ministers tried to play a double role. Both the Conservatives and the Liberal Democrats thought of the law, as they thought of the state more generally, as something that was essentially on their side. They understood the law as a valuable industry, along with the City of London and the monarchy. It was one of the ways in which Britain spread its influence throughout the world. ‘The law’ in this way of thinking was at its best when Hollywood stars travelled to London to sue each other for libel. It meant Russian oligarchs fighting their business disputes through hearings in the High Court.
As for the rest of the law, meaning the limited shield it provides for working class people to protect themselves from people with more power than them, the Conservatives had very little good to say about it. They sought to cut down this more social democratic side of the law by rationing access to justice along class lines.
The government introduced fees for employment tribunal claims, increased fees for other kinds of civil case, removed legal aid for most kinds of welfare benefits, employment, housing, family and immigration claim, refused to pay for the physical maintenance of court buildings, closed dozens of local county courts, and threatened to introduce a new online court system in which judges would be required to determine without any proper hearing all “low-value” cases (i.e. those worth less than £25k a year, or a year’s pay for the average worker).
Some of those attacks were defeated: the Supreme Court ruled that employment tribunal fees were so high as to be unlawful, and online courts proved too costly to introduce. But most of them came in, continue to have an effect, and will remain in place as long as our two main parties agree that they would be too costly to reverse.
The most destructive cut was the removal of legal aid, a service which has long been aimed at the poorest people, and enables them to be represented in court for free. The number of civil legal aid cases opened each year is a quarter of what it was in 2011-12, before the government changed the legal aid regime. In over half of Britain’s towns, there is no longer a law centre or any legal aid firm capable with a contract to take legal aid cases.
After 13 years of the Conservatives in power, and 40 years of policy consensus between our two main parties, going to court in Britain is a lot like using any other public service. The buildings are corroding in front of your eyes. The courts lose documents and fail to issue cases, the lifts are broken, the water fountains have dried up. There is damp and physical decay all around you even in the supposedly protected, highest-status parts of the system.
Attacks on the law after Brexit
The last six or seven years have seen a second, and different sort of attack. These attacks go back to the Brexit debates, and the idea that a liberal elite was imposing on the great mass of the people a system of mass immigration which the public did not want. That idea became a press obsession after the Supreme Court twice vetoed moves by the government to introduce Brexit while ignoring Parliament.
Spearheaded by Suella Braverman, the government now publicly argues that the law is rotten because it has been one of a group of previously reliable institutions since gone bad (along with the universities, the RNLI, the National Trust, even the Women’s Institute). They claim it has been taken over by a few left-wing campaigners, ‘lefty lawyers’, who have successfully imposed their value system on the courts, and now wish to manage the lives of the people in ever more hostile ways.
Needless to say, judges aren’t more left-wing than they were 15 or 30 years ago. Actually, the senior judiciary has moved significantly to the right, acquiescing in government attacks on judicial review, and in government complaints about anti-poverty charities using the courts. If, when I started as a lawyer, people dreamed of using human rights law to rewrite hostile legislation, no-one pretends that the senior judiciary has any appetite for that task now.
Politicians and the press blame lawyers for the government’s inability, on its own terms, to reduce the waiting lists of people in the UK applying for asylum.
There are reasons why there are tens of thousands of unprocessed asylum seekers in Britain. One is the sheer complexity of immigration law, which resists the simple authoritarian solutions ministers demand of it. This complexity law reflects a real-life tension; the Conservative Party serves two social bases, one of which (big capital) wants immigration to be numerically high to meet labour market demands – albeit highly disciplined so that migrants will receive little pay; and the other of which (small capital) dreams of an end to immigration altogether. Both groups demand that the law is constantly changed; which the government does, serving both and satisfying neither.
Blaming lawyers for the growing numbers of unprocessed asylum seekers claims distracts from this reality, and from the other cause. Claims are being left unprocessed by the state because the Home Office is another collapsing public service, its IT antiquated, with too few staff, and its few experienced employees leaving so fast that those left are incapable of processing asylum claims in any meaningful number.
Obviously, ministers could hardly own up to their own failures. But for the press, too, this process of blaming lawyers for the government’s failings serves a valuable purpose. It tells right-wing voters that there is some future anti-reform, whether removing Britain from the European Court of Human Rights, or sending refugees to Rwanda where they would have no lawyers, a magical cure which would make migrants disappear.
In the last few weeks, the press has been trying to raise the stakes of this attack on lawyers, through sting operations in which journalists posing as migrants encouraged solicitors to say that they should lie and make fake asylum claims. The lawyers who were photographed in that way are going to be subject to professional practice investigations and police investigations too. If the allegations are well-founded they could well be jailed. At this stage, I would not trust the tabloids to have reported fairly what the solicitors told them, any more than I trusted those same papers when they lied about the miners, Hillsborough, etc.
But socialists should be open to the possibility that there might be some kernel of truth to what the reporters have said. There are widely different levels of competence and integrity within the legal system. Most legal firms are private businesses. The need to make profits causes lawyers to take on cases in areas of the law they do not know (most high-street firms do this), or to shove work towards the least experienced lawyers who will charge less for their work but make more mistakes, or for the managers of law firms to encourage clients to exaggerate if they think it will make them win. This is partly a result of the defunding of free, accessible legal advice, which has left a gap for profiteering firms.
The firms that serve the poor are neither the only nor the worst culprits. As someone who represents workers and tenants, every day in my legal practice I see lawyers for employers and landlords bending logic to get the results their clients want, pretending they have a defence when they know they do not, even lying to pretend that the law says the exact opposite of what it does. Those lawyers are not investigated by the tabloids – their lies are made in the service of the rich.
Will anything improve under Labour? Supporters of Keir Starmer often draw a comparison with 1997, and remind us that Blair’s government introduced genuine reforms, not to make the state more social democratic but at least such liberalisation of the state as the Human Rights Act, the Equality Act 2010, etc. This is true, but the path had been paved for New Labour through a combination of popular and institutional hostility to the Conservatives. Many of their most significant reforms came about as a result of liberalising projects outside the Labour Party. Laws outlawing discrimination on grounds of sexual orientation, religion or belief, and the Gender Recognition Act, were the work of European social democrats, making laws which the government here was forced to act, in some cases unwillingly. Even the Human Rights Act owes as much to the liberalising instinct of a generation of senior judges who had already accepted the case for recognising human rights, as it does to the Blair government.
Labour in 1997 had a series of publicly announced reforms which long predated its manifesto. Labour this time around will maintain the Conservatives’ spending plans, an act of self-harm directed against Labour voters making it impossible to restore legal aid. It will jail green protesters more enthusiastically than the Conservatives. It will feel the same pressure from the press over immigration as the present government; the more left-wing cabinet elected in 1997 significantly tightened refugee law, so this iteration of the Labour Party will no doubt go further still. People who expect Starmer to look after the law will be disappointed.
As socialists, you could take a view that none of this matters. You might say that the law is always hostile to workers and therefore the best thing is simply to withdraw from the law, rely on our own strength as workers, trade unionists, members of tenants unions etc, developing our own counter-power as an alternative to petitioning the court for a fairness they’ll never give. I have no problem with that approach, and have argued elsewhere that it is the correct long-term strategy. I still believe that. The problem is, in the short term, that all sorts of dispossessed people need the law and have no other protection against the rich or the state.
One of the cases I often do is for families threatened with eviction after significant anti-social behaviour, perhaps they talk loudly to themselves alone in their flat, or they play their music all through the night, they disturb their fellow neighbours because they are suffering mental health difficulties which the NHS will not treat. These tenants are unlikely to be able to call on their neighbours to form a crowd contesting their eviction. If you’re in court, a judge might say that the tenant should not be evicted without alternative accommodation being made available to them. Take that chance away, and those people are left with nothing.
So the left has no choice but to defend this part of the law. Yet while workers and other dispossessed people must use the law, none of it is ever ‘ours’. Even when we support it, we must strive for a deeper justice than the law could ever deliver.