Unless you are sitting at the roulette wheel, leaving things to chance is a risky strategy. It can be risky even then, but there isn’t much in the way of an alternative. Even people who think of themselves as impulsive or go-with-the-flow types probably don’t leave everything to chance and have a pension, a career plan, or home contents insurance. And yet, leaving it to chance does seem to have become the government’s policy of choice when it comes to legal aid.
You could, with some reason, argue this is its policy of choice when it comes to quite a few other areas as well, but at least media and public scrutiny has forced ministers to attempt to defend their stance on, for example, benefit cuts. Little attention, however, has focused on the chaos about to be unleashed in legal aid when funding cuts kick in on 1 April.
Astonishingly, given the significant areas of the law that will no longer be eligible for legal aid, there has been barely a whimper outside of the rarefied debates in the House of Lords or the noble yet niche efforts of various commentators in the legal press.
The Law Society’s Sound off for Justice campaign fell silent once the proposed cuts were signed into law. There’s been no Panorama investigating whether our already stretched courts will be able to cope with thousands more people having to represent themselves, no Dispatches about what happens when people struggling with benefit problems or houses in intolerable states of disrepair can’t get legal help, and no Daily Mail campaign to force a government u turn.
The last one, I admit, is fairly unlikely. But it appears it is not just the government prepared to leave the outcome of this policy to chance. The chance, that is, that the legal profession itself will pick up the slack because, after all, lawyers earn a fortune and should be forced to give some of it back, for example by paying a levy on their practising certificate to fund law centres.
It is true that while there is no direct equivalent for lawyers of the Hippocratic Oath there is a commitment to uphold the rule of law, part of which must surely be ensuring everyone is able to have access to the law as and when they need it. It is, nonetheless, quite a leap from this to requiring the legal profession to pay what would effectively be a lawyer tax.
Lawyers aren’t terribly popular, but this seems a bit harsh. Fat cat surgeons aren’t expected to pay for hip replacements the NHS can’t afford; rich, greedy bankers aren’t expected to fund credit unions; expenses-laden MPs aren’t expected to pay for the upkeep of Parliament. You get my drift.
Equally unfeasible is trying to transform pro bono, free legal advice given by lawyers, into a compulsory add-on to the day job. There are all sorts of reasons why this is a bad idea, not least that it is unreasonable to expect a mergers and acquisitions lawyer by day to turn seamlessly into a social welfare lawyer by night.
That’s not to say city lawyers and law students don’t have a valuable contribution to make or that current arrangements couldn’t be more strategic. I’d go so far as to say they probably should have to get down and dirty with the real people at some point in their career, so I like the requirement recently introduced in New York for all law students to perform 50 hours of unpaid work of a condition of practicing in the state.
But making sure all lawyers understand the sharp end of their profession is a far cry from adopting it as your policy for maintaining the rule of law, which is what the government seems to be doing with its ‘community legal companions’, law students to advise people preparing to appear in court without a lawyer.
What is most shocking about this, if not unfortunately at all surprising, is that we are quite happy to fob off those with some of the most fundamental and complicated legal needs on to the well meaning but unqualified.
We may not have a national legal service to parallel the national health service (and we may not have that for much longer either) but we will all be the poorer if justice is dependant on ability to pay. What’s just as depressing is that the government seems effectively to have abdicated all responsibility for developing an alternative.
And there must be alternatives. It cannot be that we are happy to consign tens of thousands of people to a justice black hole where they have no means of enforcing their rights. Equally, a piecemeal approach, propping up one law centre here, throwing recurrent lifelines to another one there, is neither desirable nor sustainable.
Some time ago the justice minister Lord McNally told a Legal Aid Practitioners Group conference that ‘it is time to move on from LASPO’ (the Legal Aid, Sentencing and Punishment of Offenders Act 2012). In one respect he’s right, it is certainly time to move on from arguing that the cuts are unjust and will be terribly damaging to many of the poorest and most disadvantaged.
In another sense, we can’t possibly move on from LASPO until we have found a coherent policy alternative to legal aid, one that government, society and the legal profession will accept. This means rethinking what we mean by access to justice and building a system that works for individuals rather than just the lawyers that staff it.
Just hoping the ball lands on black is not the answer.