We're not all fat cats

[Thinking Man's Idiot]

We're not all fat cats

(Thursday 06 November 2008)



LIZ DAVIES explains why the government's assault on Legal Aid is undermining our justice system.

LAWYERS and bankers share at least one thing in common. Both feature low among the public's priorities of people who should be receiving public money, let alone at times of recession.

Fat-cat City lawyers may indeed feel something of a chill wind as their corporate clients cut down on litigation. It's hard not to smile at the thought, although each takeover, each bail-out, each attempt to freeze another country's assets involves large City legal firms charging exorbitant contract fees.


But there is another side to the legal profession, one that is going to be needed desperately as the recession hits hard.


Repossession of owner-occupied homes has increased by 71 per cent in the last year. There are nearly 1.7 million households on council waiting lists and Shelter predicts that this will rise to 2 million by 2010. Citizens' Advice has already reported increasing numbers of people seeking advice on repossessions or debts owed to electricity and gas companies.


Yet the government holds firm. There is to be no funding increase for legal aid.


It plans instead to target resources away from high-quality, specialist legal representation and towards networks of "integrated advice centres."
The impact of the government's reorganisation of legal aid started to bite even before the recession.


Young Legal Aid Lawyers, a fantastic campaigning group at the forefront of making the case for keeping legal aid, conducted a "quick, dirty but important" snapshot of people attending court in spring this year.


It doesn't claim that the research was scientific. But it does claim that the findings were shocking enough to raise concern, particularly since the government has consistently refused to commission independent detailed research into unmet legal need.


Sixty people were interviewed over two days in one county court and one magistrates' court.


Two-thirds of the people it talked to in the waiting areas outside court were unrepresented. Nearly all of them would have liked to have been represented or to have obtained legal aid and had tried unsuccessfully to find a lawyer. This included people who thought that they were financially eligible for legal aid but could not find a legal aid solicitor in the area.


Fifteen per cent of those attending the magistrates' court and 90 per cent of those attending the county court were unrepresented. The people attending the county court were facing family proceedings, involving their children's future, housing and debt problems where they risked losing their homes.


Since 1984, all suspects have had the right to free legal advice on arrest from a solicitor of their choice, but it has been undermined by government cost-cutting.


From 2001, solicitors were only paid to give telephone advice for certain minor offences. Then, in 2005, a pilot scheme called CDS Direct was introduced. Suspects who had requested the duty solicitor would only receive telephone advice in certain circumstances.


Extraordinarily, the decision on whether a suspect required advice in person or over the telephone was made by non-lawyers on the basis of the information about the case from the police.


This pilot scheme was never evaluated, but those arrested lost two rights earlier this year anyway.


First, they no longer have a right to free legal advice from a solicitor of their own choice.


If a client wants advice from a solicitor, they will have to pay that solicitor privately. But most people arrested are not in a position to afford solicitors' fees.


Second, those who request the duty solicitor, which most people now will since they can't afford to pay their own solicitor, will find that a non-lawyer will decide whether an arrest is serious enough for the duty solicitor to attend in person or whether advice can simply be given by phone.


The right to free legal advice matters.


There are numerous studies showing that advice in person is far more effective than advice on the telephone.


In person, a lawyer can assess the vulnerability of a client, can tailor advice accordingly, can spend more time with the client and can build up trust between them. Police intimidation of suspects is far less likely when a lawyer is physically present.


Since 1994, the caution on arrest tells suspects that they do not have to answer any questions, but a failure to do so may be held against them in court.


Being locked in a cell and interviewed by at least two police officers is a frightening experience.


Most people are more concerned with getting released quickly than with what will happen to them at a later date in an unspecified court. They need lawyers to advise them on the best course of action in the long run. The best legal advice is given in person, by a lawyer whom the suspect trusts.


The government and Legal Services Commission have consistently refused to study the impact of cuts in public funding. Yet these are not trifling matters.


Those arrested face the loss of their liberty, criminal records which affect future employment prospects, public and private humiliation. Those in civil courts are trying to put forward family arrangements that will be best for them and their children or face the loss of their home.
Lack of legal aid affects us all.


Liz Davies is a barrister and long-time labour and peace movement campaigner. She is chairwoman of the Haldane Society of Socialist Lawyers.

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