After the Hustings: Legal Aid

Deborah Padfield, 2015 Apr 20
What did we learn from the candidates?
What did we learn from the candidates?

Access to law – stop the rot

There will be fuller reports of last evening’s Progressive Hustings, at which the three Cambridge ‘left-of-centre’ candidates were questioned on issues of equality. Legal aid was one of them – that rarely-mentioned defining condition of democracy.

The candidates

All three candidates agreed that access to law is fundamental to democracy. They could hardly do other. Only Rupert Reed for the Greens unconditionally supported restoration of legal aid, and he did not claim to be an expert. The brief yet repetitive treatment of ‘Access to Justice’ on the Green website does not suggest its priority. Daniel Zeitner for Labour was honest if dismaying in responding that, while regarding it as crucial, Labour did not undertake to restore a system commensurate with the one destroyed by the Coalition in 2012, largely because of the lack of voter demand. Julian Huppert for the Lib Dems pointed to his opposition to the withdrawal of legal aid; his voting record shows him supporting the policy 47% of the time. He is not recorded as a rebel.

Daniel’s stance was interesting. None of the parties have made any attempt to bring it up the political agenda. As an abstract principle, I wouldn’t expect it to have popular traction. How do you campaign on an absence? It’s when the reality of that absence bites home, as it does in relation to specific problems, that the passions rise.

Domestic abuse: the limitations

Daniel focused on lack of legal aid in cases of domestic violence. That was intriguing, since DV is – along with other human-rights-abusive problems including discrimination – one of the surviving areas of eligibility. But there are always the problems of narrowness and proof. There must have been actual, not merely threatened, abuse and it must be documented, primarily by police involvement.

At CAB, we have a gentle flow of people afraid of or controlled by their partners and of older people similarly in thrall to their children. It is relatively rare to see someone who has experienced an recent, proveable incident and who is able and willing to take action on it. That’s not least because so much serious abuse – practiced by and upon either sex though most often upon women – is invisible: financial control, coercion, neglect, enforced isolation, disablingly undermining behaviour. How do you prove those? How do you even articulate them, becoming aware of them as justiciable issues rather than – all-too-often – seeing them as manifestations of your own inadequacies?

And more widely?

As a legal-aid-funded benefits adviser for several years, I loathed the system. I would not want a like-for-like replacement. Its demands were time-consuming (and therefore expensive) and, even then, they appeared narrowly arbitrary. By imposing their own criteria, they reduced the effectiveness of our work. It seems sourly comical to look back at those criticisms, given the total absence now of legal aid for benefits, and the disabling narrowness of current criteria for legal aid on housing: only where eviction is imminent, where disrepair is a threat to health and safety of the occupants or where the tenant faces action for anti-social behaviour. Not for any of the multiple problems that lead up to these crises, including benefits, debt, increasing disrepair or family conflicts short of ‘domestic violence’.

We do our best at Citizens Advice Bureaux. But where I work just outside Cambridge, we are scuppered by the shortage of relevant solicitors. It is so extraordinarily time-consuming to help clients get their evidence for eligibility and to present it to the Legal Aid Agency, and the instances of refusal by the LAA are so frequent, that many solicitors are pulling out of contracts. In practice, people need expert pre-legal-advice advice to have a hope of getting aid, and then there’s no certainty.

Lack of demand; lack of supply; lack of hope

What I fear is that lack of legal aid will swiftly atrophy our public awareness of the need. I see it happening now, not in what people ask but in what they do not ask. Ironically, given government propaganda about benefit ‘dependency’, one problem with access to law is the lack of demand for it – the shortage of rightful sense of entitlement.

People come to us for advice on benefits, debt, housing, employment, relationship breakdown. They are desperate and grateful for whatever we can do. Most people are vividly and often bitterly aware of the inequities of the systems they face. Private landlords’ power to evict without reason once the (usually 6-month) fixed-term contract ends; errors and delays in benefit entitlements of a kind which no salaried employee would accept from an employer; effectively arbitrary ‘sanctions’ which stop payments again without parallel in the experience of secure employees. Within the employment area, illegal deduction of wages is not, again, something that salaried employees generally experience. It’s common in the world of part-time, temporary work. And so on.

People know they are being wronged, they are angry and/or consumed by anxiety, fear and even irrational guilt. They want help – but there is an underlying sense of helplessness. Whether or not the landlord, employer and benefit system have rights, they have power. The overriding need is to survive. If that means going to court or tribunal they may or, when they are vulnerable and overwhelmed may not, go through with it.

There’s a great uncharted ocean of appeals not pursued; of sanctions, evictions, dismissals, non-payments and administrative penalties accepted by default. If it’s possible somehow to survive without voluntarily submitting oneself to yet another encounter with bureaucratic power, many of us will choose that path. In the end, one’s likely to need another home or another job – let’s get on with finding it in time. Even if one appeals a sanction, the money will stop now, so let’s get on with somehow putting food on the table.

Just yesterday I stopped and chatted to a man holding a bill-board signalling towards a shop down one of the Cambridge side-streets. ‘I hope they pay you well for your boring job!’ I said. ‘£6 an hour,’ he said. ‘But that’s below the minimum wage,’ I said. He looked sheepish, as if it were his fault. ‘Well, it’s a job,’ he said. A few weeks ago I had a similar conversation with the young man organising a wedding in a Cambridge-area hotel. He was expecting to be working till four next morning; that was his norm. He reckoned he was doing a 60-hour week. He was paid for 40 hours, no overtime. ‘?????’ I said. ‘It’s the way in,’ he said. ‘I’m lucky to have it.’ Employment Tribunal? No chance.

Only in family law is defeat less engrained, so far. There, partners are not pitted against a faceless Power but against each other. Often one is more powerful than the other in terms of money and/or personality. That’s a bitterness, but it’s not an engrained inevitability; not, at least, for everyone. People know their need of advice and representation and can see so clearly the inequity of not getting it. Though even here, I suspect that the acceptance of inequality is seeping corrosively in. People still ask, but they rarely expect to get. The people most incredulous about their lack of rights are usually the previously-richer ones. That’s true in every area of law. People accustomed to the sharp end of poverty know the score already.

Stopping the rot

It’s not good enough for politicians to wait for demand before they think of supplying justice. They are presiding over the systems which erode hope of supply, and hence demand.
Without access to law there is no democracy; a generalisation which happens to be true.