On 7 May, my X will mark the spot – but for which party?
What do the main political parties have to offer a first-time voter, who is an aspiring legal aid barrister and cares about access to justice? Not that much if their manifestos are anything to go by, says Deena Blacking.
Although I am 28 years old and a British citizen, 7 May will be my first time voting in a UK general election because I spent my teenage years and early 20s living in the Republic of Ireland. I voted for the first time in the UK in last year’s local council elections. Despite knowing what to expect with the first-past-the-post voting system, it was still an odd experience to mark an X rather than number all the candidates in order of preference (as per the proportional representation system used in Ireland). I am excited to exercise my democratic right to vote – after all, I only get to make one mark every five years.
This May, I also become the vice-chair of Young Legal Aid Lawyers (YLAL). I joined YLAL in 2012, at what seems to have been the busiest and most difficult period in recent times faced by those campaigning to preserve access to justice and publicly-funded representation. One of my key reasons for joining YLAL was the opportunity it offered for direct engagement with politicians in Westminster through the All-Party Group on Legal Aid. (YLAL co-ordinated this group with the Legal Aid Practitioners Group during the last two parliaments.) As the elections loom, I hope that our efforts to educate politicians about legal aid will pay off.
In my quest to discover who deserves my vote this time, some history may be helpful. For the last century, the three main parties in parliament have been the Conservatives, Labour and the Liberal Democrats (albeit in various incarnations). At the end of the 2010–2015 parliament, the Conservatives had 302 seats, Labour, 256 seats, and the Lib Dems, 56 seats. The remaining 36 seats were shared among 10 other parties and the speaker. The forecasts for this general election upset this trend and predict that the Lib Dems will be replaced by the Scottish National Party as the third party. The election predictions vary in the region of about plus or minus 10 seats for each party: Conservatives are predicted to win 271–283 seats; Labour, 266–276; SNP, 41–51; with the Lib Dems falling to 22–28 seats. (Despite the huge publicity it generates, UKIP is predicted to win only five seats at most.)
My original aim in writing this article was to provide a round-up of all the key justice and legal aid policies of the main political parties. However, as I researched the views of the parties on legal aid, what struck me most was that legal aid and access to justice barely feature in the manifestos of each party. When questioned directly about legal aid, the parties mostly appear to have answers, but legal aid and access to justice is barely on the published agenda. Two inferences can be drawn from this: either none of the parties see this as being something sufficiently important and, therefore, it does not feature high on their lists of priorities or, even if it does, the parties have nothing positive to say about it. This is neither new nor surprising, but it reminds us of the difficulties that we face in even getting legal aid on to the agenda.
‘What struck me most was that legal aid and access to justice barely feature in the manifestos of the main parties’
One of the main problems for campaigners against the changes to legal aid implemented during the last parliament is that these have been so drastic and wide-ranging that it is difficult to boil down to an easy-to-digest message for the public and a single ‘ask’ for MPs. For example, legal aid practitioners are all concerned about the restrictions on the ability to provide advice to those who need it, but we are also concerned about the reduction in the remuneration received for that work. When we try to raise these issues, it is easy for people to stop paying attention, especially when it concerns how much we earn. In addition, the differences in the changes to remuneration – for example, criminal solicitors have seen greater cuts to their rates than some barristers – have led to difficulties in maintaining a united voice.
Happily, the profession is replete with intelligent, forward-thinking individuals and groups who are working hard to publicise the key issues facing those in need of legal advice and assistance. On 18 March 2015, LAPG launched its manifesto for legal aid, which sets out the key issues as experienced and understood by lawyers and advisers working in the sector. Other groups have also published manifestos which address a slightly wider set of concerns: the Chartered Institute of Legal Executives, the Bar Council, LAG, Law Centres Network and Advice UK have produced a single manifesto for justice, while the Law Society has also published a manifesto of its own. Both of these documents in large part address concerns about the recent changes to civil and criminal justice brought about by the restrictions on legal aid and judicial review.
Parliament: persuading MPs to take an interest in legal aid issues is no easy task for campaigners
What do the parties say?
The key themes for legal aid and access to justice are as follows:
1. Total expenditure on legal aid
2. Reduced scope under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
3. Requirements for eligibility, ie means-testing
4. Criminal legal aid contracts
5. Residence test
6. Judicial review
Not every party has a clear policy on all of these issues. Below, I go through what the parties have said on these subjects. Although the SNP stands a strong chance of being part of the government, correspondence with Scotland’s justice secretary, Michael Matheson, revealed that it does not appear to have put its mind to how to vote on legal aid provision in England and Wales, so I have been unable to provide any insight into what SNP policy might be. (This is important because although Scotland is a different jurisdiction, SNP MPs would still be able to vote on legal aid in England and Wales; and, given Alex Salmond’s comments during the referendum debates, it is likely that they would be doing all they could to reduce money spent in England and Wales, so that more of the budget is available for Scotland.)
Spending on legal aid
In the Conservative manifesto, published on 14 April, the only mention of legal aid is as follows: ‘We will continue to review our legal aid systems, so they can continue to provide access to justice in an efficient way.’ Anyone who has read the prose in the Ministry of Justice consultation documents and responses knows that ‘continue to review’ can mean only one thing for the Conservatives – continued cuts to spending on legal aid.
In an interview published in the Guardian on 2 March, shadow justice secretary Sadiq Khan admitted that Labour ‘could not reinstate £600m of legal aid cuts imposed by the government’.
Under the Criminal Justice and Courts Act 2015, the ability to bring judicial review claims was hampered, both in scope and in terms of funding. The changes to judicial review were a highly political Conservative policy – it blames judicial review for delaying planning developments and deportations, and accuses charities and ‘leftwing campaigners’ of using judicial reviews in order to promote their own political agendas. Despite the technical success of the recent judicial review of the regulations on payment for work done before permission (R (Ben Hoare Bell and others) v the Lord Chancellor  EWHC 523 (Admin)), the financial risk for advisers to carry out work without any guarantee of payment remains (the government, on 27 March 2015, laid new regulations which reinstated the original rules, save for a further few limited exceptions to satisfy the particular concerns voiced by the court (May 2015, Legal Action p6)). There is little doubt that if there is a Conservative-led government, at best we can hope that there will be no further erosion to the ability to bring a claim for judicial review. Unfortunately, given their public dislike of judicial review, there is a real risk that the Conservatives may try to further restrict the ability of individuals and organisations to bring judicial review claims.
‘Although the SNP stands a strong chance of being part of government, it does not appear to have put its mind to how it would vote on legal aid provision in England & Wales’
In the same Guardian interview, Sadiq Khan committed Labour to repealing ‘all the changes the government has made’ in relation to judicial review.
The Lib Dems occupy a complicated position on judicial review. In November 2013, prior to being appointed to the cabinet, legal aid minister Simon Hughes voiced his concerns about the proposed changes. Then, he was made a cabinet minister and his opposition to the proposals appeared to falter, and he has been reported as saying that limits to judicial review are ‘less unpalatable than at first draft’. His party has promised ‘a review’ of the legislation but no more than that.
The Conservative home secretary, Theresa May, has recently acknowledged the difficulties faced by families involved in publicly-funded inquests attempting to secure funding, but fell short of making any commitment to easing the requirements.
As part of their focus on improving rights for victims, Labour has pledged to ease the requirements on victims of domestic violence.
Criminal legal aid
The Conservatives would continue with the implementation of their planned two-tier contracts and the second tranche of fee cuts to criminal legal aid practitioners.
Labour has promised to reverse the two-tier contracts and to review the further cuts to fees. Perhaps more significantly, Labour has pledged to work with the profession in addressing this, something that has been glaringly absent with the Conservatives.
In July 2014, following a judicial review claim, the High Court found that the residence test was unlawful. The government is appealing the decision and the outcome should be known this summer. The Conservatives retain the view that legal aid should be available only where the applicant has a strong link to the UK.
Commenting for the Guardian on 15 July 2014 at the time of the first instance judgment, Labour’s shadow justice minister, Andy Slaughter, said: ‘[t]he Labour party have always maintained that David Cameron’s residence test would unfairly penalise the vulnerable, which is why we voted against it last week. We welcome the court's judgment and hope that the government move quickly to drop these unlawful measures.’
Individual Liberal Democrat MPs such as Sarah Teather were firmly against the residence test, but what the Lib Dem party policy on the residence test would be remains to be seen.
Back to the future
This year, YLAL celebrates its 10-year anniversary. As part of the preparations for our celebratory event on 23 April, I spent some time reviewing what we had done over the past 10 years. I was struck by the fact that, 10 years ago, young legal aid lawyers were saying the same things to politicians, and politicians seemed to be saying the same things to lawyers. It is concerning that not much appears to have changed. Legal aid lawyers, it seems, are always having to justify the need for a publicly-funded legal service. What is worse is that 10 years ago, there wasn’t the same perceived ‘need’ for austerity and deficit reduction as there is now. This crucial difference has made it far more difficult for lawyers to persuade politicians of the need to spend on legal aid.
‘When Simon Hughes was made a cabinet minister, his opposition to the judicial review changes appeared to falter’
As a young, aspiring legal aid barrister, I try to retain some optimism for the future. I am not, however, duped by the promises that politicians seem to make so easily. The word that has been used most frequently by politicians in their various promises about legal aid is ‘review’. The Oxford English Dictionary defines review as: ‘A formal assessment of something with the intention of instituting change if necessary.’ ‘Review’ promises little. It is all well and good to say that a review will take place, but in the end nothing is certain other than the review itself. Worse, recent evidence shows that even this may not be the case: in September 2014, Simon Hughes promised a review into children’s access to justice. That review never took place. In light of this (and other similar reports), it is important that the promises of politicians are considered in the cold light of day and that we do not read into or ascribe meaning where there is none.
Considering what may or may not happen on 7 May, it is clear that the worst-case scenario for legal aid lawyers, young and old, is likely to be a Conservative-led government, and that a better scenario may be a Labour-led one. As to what is the best-case scenario, we may never know. In truth, I remain an optimistic young legal aid lawyer, not because of any particular faith in politicians, but because of faith in my fellow YLAL-ers, and people like Legal Action readers. The parties may not have trumpeted their legal aid policies in their election campaigns, but that doesn’t stop us from trying to push legal aid on to the agenda ourselves.
‘The word most used by politicians in their various promises about legal aid is “review”’
Take action now!
At the April YLAL London meeting, there was much debate about how to get MPs to engage with legal aid issues. Some suggested going out canvassing with your preferred candidate so that if (and hopefully when) they are elected, you are a familiar face; others suggested heading along to meet them at their first monthly surgery. There is a wealth of information and evidence that we can arm ourselves with, including the manifestos, the reports of the Low Commission, the Justice Select Committee on Human Rights, the National Audit Office, as well as the highly publicised judicial review cases brought against various aspects of the changes to legal aid. We must make it our business to encourage our newly elected MPs to attend the first meeting of the All-Party Parliamentary Group on Legal Aid.
As a group, YLAL is realistic – we’re aware that this is unlikely to result in some miraculous cross-party realisation that the cuts to legal aid were a terrible idea – but we also recognise that politicians will only reconsider and review the cuts to legal aid if there is someone reminding them how terribly they impact upon their constituents.
As practitioners, campaigners, and as people who value the importance of the welfare state, we should all make it our business to get legal aid on to the agenda now. This is our opportunity to make a change and to influence policy. The earlier analysis of party policies on legal aid seems to indicate that not much thought has been given to future legal aid policy, so this is our chance to focus their minds. If you haven’t already, it is time to think about contacting your next MP and strike while the iron is hot.