Legal aid was introduced in the 1940s as one of the pillars of the welfare state. The aim was to provide a vital safety net for everyone including the underprivileged. As Winston Churchill once said ‘the treatment of crime and criminals’ was ‘one of the most unfailing tests of the civilisation of any country’.
The very same system, which was once supported by the public and envied by countries across the world, has ‘lost much of its credibility with the public’ according to Chris Grayling, Justice Secretary. Political rhetoric has changed. Instead of supporting a human rights agenda, punitive policy proposals are used to feed the Government’s anti-human rights agenda. Discourse dictates that the poor are viewed as unworthy of a safety net funded by the public purse, whether welfare benefits or legal aid.
In an attempt to save £220 million per year by 2018, Chris Grayling has outlined further controversial proposals to significantly reduce the costs of legal aid. Grayling’s proposals will impact predominately but not exclusively on criminal legal aid. Lawyers across England and Wales have protested outside the Houses of Parliament in opposition. There is a real concern that the target of these cuts are the most poor, who without legal aid would have no representation and no means of access to justice, a principle which should be available to all, regardless of class, wealth or ethnicity. Under the Government’s proposals legal aid will no longer be available to all.
The proposals aim to remove legal aid from a large number of prisoners who may for example have a claim against their treatment in prison. Access to legal aid for immigrants, specifically the most recent arrivals in the UK, will also be curtailed. In practice this means that the most marginalized are penalized. It is not hard to envisage a situation where a young girl trafficked into the country for the purposes of sexual exploitation who may have suffered the most horrendous acts of inhumanity, may not be entitled to legal aid under the Government’s proposals and will not therefore, have access to justice.
Among the proposals is a clear aim to introduce price-competitive tendering for criminal legal aid contracts. Solicitors firms will bid for legal aid contracts in criminal work against leading competitors such as haulage firm Eddie Stobart and supermarket chains who aim to establish a legal arm to their business enterprise in pursuit of commercial gains. The simple fact is the majority of high street solicitors firms cannot afford to bid against lucrative enterprises.
It is expected high street solicitors firms will perish from 1,600 to 400. There will not only be a reduction in the numbers of solicitors firms but also a reduction in the quality of representation. Under the proposals legal advice need only be ‘satisfactory’ – not excellent or even good. There will be no incentive for lawyers to provide outstanding legal representation when cases are assigned to the cheapest lawyer rather than the best.
The UK are following America’s neo-liberal economics by privatising the justice system in pursuit of profit. We only have to consider the result of price competition in criminal cases in America to see that privatised justice will be the death of justice for all. America pioneered low-bid contracts for legal services to ensure poor or needy defendants were represented. Different states implemented different forms of price competition for legal services. Although, some states, notably California simply give contracts to the lowest bidder.
America’s legal system highlights that a system sold to low bidders churns out poor representation resulting in miscarriages of justice. Take the example of Gary Nelson. His lawyer, who represented him on a capital murder charge having never tried one before, was paid less than $20 per hour, and his closing speech was 255 words long. Nelson was convicted. After representation by an experienced legal team he was later exonerated. Many defendants have been wrongfully convicted due to lack of experienced representation and a fair trial.
Grayling further proposes that lawyers will be paid the same fee for guilty pleas, which take an average of one minute, as for trials, which can last anywhere from a day to several weeks. Research in America, shows that introducing such a proposal would mean lawyers will have financial vested interests in persuading defendants to plead guilty. Research conducted by Meredith Nelson in America found that defendants represented by contracted lawyers are far more likely to plead guilty at first court appearances. There is an undeniable incentive for lawyers to encourage innocent individuals to plead guilty when lawyers in America make a living from 70% of their clients pleading guilty at first instance.
Privatisation of the justice system will result in deeply concerning conflicts of interests. For instance, under the Government’s proposals the same private contractor responsible for imprisoning defendants may also be responsible for representing them in court. If G4S won a contract for criminal legal aid, they would be responsible for representing defendants in court. And once the defendants have pleaded guilty or are found guilty, G4S would then be responsible for securing the defendants (it once sought to represent) safely behind bars. Apparent vested interests will cause real concern that financial rewards are an incentive to ensure imprisonment rather than a fair trial at the expense of justice.
It is accepted that we are in hard financial times and cuts need to be made where possible; however, the savings that Grayling proposes are at the expense of the bedrock of our society, justice. Real savings could be made with proposals that do not seek to erode equality, fairness and justice for all. Sadiq Khan MP, Shadow Justice Secretary, has made counter-proposals, which would address the real cause of money loss in the justice system by reviewing the courts, prosecution systems and judiciary to cut out inefficiency and bureaucracy. One example might be extending Magistrates’ Courts case load by giving them the power to give sentences of up to 12 months (rather than six months) for single offence, as opposed to transferring to the Crown Court, which is more costly (magistrates are unpaid). Our justice system can be saved but it is not going to be without a fight.