By Afua Hirsch
Earlier this year I spent some time at a London law centre. Like many services that offer free legal advice, many of its clients are young adults at risk of homelessness, worklessness, poor mental and sexual health, and becoming involved in antisocial behaviour, drug use and crime.
It's long been said that legal aid, in the 60 years since its birth after the second world war, is the unrecognised fourth pillar of the welfare state. Nowhere is this clearer than at South West London Law Centre, a dilapidated, damp building in Tooting staffed by lawyers with an almost irrational dedication to working on the frontline. I met one of their clients, a 20-year-old called Danni who had lost his job as an apprentice joiner in the recession. He was wrongly told that he could not claim housing benefit to help pay his rent, and found himself in court as the council tried to repossess his council flat.
Danni, who like most people had no knowledge of legal proceedings or civil law, faced the daunting prospect of representing himself in court and being made homeless. He was saved by a lawyer from the centre called Niki Goss, an amazing and vastly experienced man who has spent his career taking on this kind of case, for which he earns less than the average primary school teacher. Goss, funded by a legal aid scheme that enabled him to be on duty in court that day, persuaded the judge to oversee a compromise with the council so that Danni could remain in his accommodation.
The Law Centres Federation estimates that the average cost to the taxpayer of evicting people like Danni is £34,000. The service provided by Goss that day and subsequent court hearings costs less than £1,000. Providing vulnerable people with legal representation saves money down the line.
But these areas of law – free advice on housing, debt and welfare – are exactly those most likely to take the hit from the coming spending review and after it the planned green paper on legal aid. The issue is simple. Legal aid costs the government £2.1bn a year. The Ministry of Justice needs to cut 25% of its £9.2bn budget, and is stuck with largely immovable objects in the National Offender Management Services (the biggest chunk of Ministry of Justice spending), prisons – which are already stretched beyond capacity – and courts, only so many of which can be closed. Unpopular with the taxpayer, who still conjures up images of fat cat lawyers – and unpopular with government, which essentially has to fund cases challenging its own policy and decision-making – legal aid is likely to shoulder a large share of the burden.
Informed speculation suggests that areas of civil law such as housing, debt and welfare advice could be removed from the scope of legal aid altogether. Asylum and immigration advice are also likely to be prime targets.
The government recognises the hardship that this will cause, but has other suggestions. One idea that has proved popular among Tories is the idea that lawyers should do more work for free. Pro bono legal advice and representation, senior Conservatives have argued, are an important part of a lawyer's civic duty. Jonathan Djanogly, the justice minister in charge of legal aid, has even suggested that it would be a good way of keeping busy women who wanted to return to work from maternity leave.
"Pro bono can be a good filler for those lawyers out of work, or women who want to get back into the legal job market after having children," Djanogly said at a fringe meeting at the Conservative party conference.
There is a socioeconomic hierarchy within the legal profession. Djanogly, who earned banker-level salaries during 21 years of practice at the wealthy international law firm SJ Berwin and had enough spare cash to pay a private investigator to conduct investigations of his colleagues, is at the top end. It may well be true that lawyers in his position ought to give up more of their time to assist people for free.
Legal aid lawyers, however, occupy the opposite end of the spectrum. To a disproportionate extent they are made up of people working in small high street firms, women, and ethnic-minority lawyers. The idea that they should work for free is neither sustainable nor fair. If the taxpayer cannot stomach paying lawyers to represent people who cannot afford to pay for themselves, then the supply of legal representation will dry up.
But the demand for legal representation is unlikely to abate. This is in large part because of the poor quality of public decision-making. In asylum cases – politically one of the more expedient areas to cut – one third of people who are refused asylum are successful on appeal. As long as the Home Office continues making unjust decisions, then legal challenges will remain an essential check on their decision-making process.
In judicial review cases, which can only succeed if public bodies have made decisions that are irrational, illegal, or a violation of fundamental rights, 40% of cases last year were successful. Spending cuts elsewhere in the public sector can only exacerbate the potential for the kind of poor decision-making against which the courts have been a last but crucial line of defence.
The irony is that legal aid has funded cases that have the "big society" stamped all over them. It has allowed ordinary people with no legal literacy to bring cases challenging the sometimes nonsensical decisions of central and local government. It has driven much of the civil liberties agenda that the coalition has adopted as its own, with legal challenges against the use of torture, the scope of the DNA database, and the clampdown on the right to protest, all funded by legal aid.
Lawyers don't want to earn less. They have made other suggestions about how money can be saved from the Ministry of Justice budget, like taking a levy from the financial services industry to pay for the cost of expensive fraud trials, which many see as their own regulatory costs. Richard Miller, the Law Society's head of legal aid, has also suggested a levy on the alcohol industry to reflect its role in generating criminal cases.
But the argument about what lawyers should earn has already been lost by the profession, their legal aid fees were cut across the board by the last government. The question now is whether there will be any legal aid lawyers at all.