Andrew Caplen and David McIlroy explore the urgent need for legal aid reform. 18/12/2018
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Over the next week or so, thousands of sermons across the country will remind millions of people of the nativity story. All (we hope) will talk of Jesus, Mary, and Joseph. Most will talk of angels, shepherds, and magi. Some will mention Mary’s song, the Magnificat, with which she responds to the momentous news. Very few – we bet – will talk about Magna Carta or legal aid.
And yet there is a curious link here, which recent news has brought to the fore.
Over the years, Theos has published on the politics of Christmas, the Christian roots of Magna Carta and the erosion of legal aid. All three come together in Mary’s words, when she sings out how God “has brought down rulers from their thrones/ but has lifted up the humble.”
The God of Israel was known to his people through his gift of the law. That law was, and is, the thing which brings down the powerful – clipping their wings and preventing them from doing as their might or power pleases them – while lifting up the humble: those too weak, too poor, too insecure to fight for themselves. Law should be the great leveller.
A few years ago, we celebrated the 800th anniversary of the sealing of Magna Carta, a document heavily influenced by Christian thought, as the Theos report The Church and the Charter pointed out. Clause 40 states baldly: “To no one will we sell, to no one deny or delay right or justice.”
The UK Government made much of the celebration, inviting Justice Ministers, Attorneys General and Bar leaders from around the world to join the celebrations. Magna Carta is considered to be a foundational document of the rule of law, even in countries beyond the English Common Law system.
The same year also saw the publication of the Theos report Speaking Up – Defending and Delivering Access to Justice Today by the authors of this blog. It argued that our much–celebrated legal heritage was under threat because justice was in danger of becoming the preserve of the rich. Policies of successive governments had ‘eaten away’ at the ‘safety net’ of legal aid. The Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO) removed many areas of law from the scope of the legal aid system, and changed financial eligibility limits, further restricting the number of individuals qualifying for free legal advice and assistance.
The result was that someone involved in a legal issue where either they or their matter did not qualify for funding had three options: (1) raise funds privately to pay for a lawyer, often not an option due to individual straightened circumstances; (2) represent themselves; or (3) walk away, with the injustice and heartache that that would bring.
The Government did undertake to review the out–workings of LASPO in the light of the many concerns that were expressed. This review is now three years overdue. There seems to be no good reason for the delay, except perhaps that the Government already knows one of the findings – cuts have deprived many citizens of access to justice.
The crescendo of concerns now includes Professor Martin Chalkley, the chairman of the Bar Council, Andrew Walker QC, and the BBC. Professor Chalkley’s research found that between 2008 and 2018, government funding for legal aid fell by 32 per cent.[1] Andrew Walker QC condemned the, “huge threat to access to justice in our country” caused by “political design, political folly and policy expediency.”[2] A recent BBC investigation[3] has shown that cuts in legal aid have created, “deserts of provision” across England and Wales, coupled with a severe decrease in the number of providers and around a million fewer claims for legal aid being processed each year.
“To no one will we delay right or justice?” The rule of law, our greatest contribution to the free world? Yet without access to justice there can be no rule of law as rights granted and obligations imposed can neither be protected or enforced.
So what should be done? The Government should stop prevaricating and “do the right thing”. After all, the provision of an effective justice system is, along with the defence of the realm, one of the two fundamental responsibilities of the State.
We argued in 2015 that this threat to access to justice should be of immense concern to the Church, because the Bible clearly and continually emphasises the requirement for us to ‘do’ justice, to, “speak up for those who cannot speak for themselves, for the rights of all who are destitute… defend the rights of the poor and needy.”[4] That imperative has not changed.
This Christmas, neither Magna Carta nor legal aid reform will be at the top of people’s minds. We should not be surprised by this. Scrooge–like is the person who can’t carve a turkey without pontificating about government spending or – heaven help us – Brexit. But we would do well to listen to the words we say or hear this Christmas, and think about what bringing down the powerful and lifting up the humble really means today.
