Legal Aid And The Two Tier Justice System

Boris Johnson is dangerous. His attacks that dominate the airwaves serve two purposes. Firstly, they sow division, creating a hostile environment for a section of British citizens. Worse than that, he skews public opinion. If an MP is less offensive than he is, they seem somehow respectable, even when they are not. My friend summarised it thusly:

The Tory party are at least making their leader look like one of the least deplorable amongst them. Which is quite an achievement since she’s a horrible, pragmatic, self-serving ghoul.

Today I want to focus on another horrible, pragmatic, self-serving ghoul, Chris Grayling. Specifically I want to focus on his time as Secretary of State for Justice, a post he held from 2012-2015. It would be easy to focus on his expenses scandal; his suggestion that B&Bs should be able to bar gay guests; his deliberate fudging of crime statistics; the time his department lost files on the Mark Duggan shooting in the post; the  time he banned prisoners from receiving books; the time he was described as the worst Lord Chancellor in 342 years, or the fact that prison deaths rose by 38% during his tenure as Justice Secretary (I’m guessing it wasn’t coincidence that this happened at the same time as he cut thousands of jobs from the prison service), but sadly, we don’t have the time for all of that.

Instead we will focus on how he created a two tier justice system through his cuts to legal aid. As a quick primer, I will give a brief history of what legal aid is. It was created in 1949 as part of the post-war Welfare State, which also led to the creation of the NHS. It provided funding for legal advice, out of court and in court representation by lawyers. It was means tested from the beginning and was available to roughly 80% of the population. By 2012, that number had shrunk to around 34%. For those that struggled with debt, housing and the problems associated with family breakdown, legal aid allowed for them to receive a fair shake in a court of law. In 2013, the Legal Aid, Sentencing and Punishing of Offenders Act 2012, changed this, removing almost all access to legal aid. They diverted some of the money to mediation, but the idea that mediation would be an effective alternative to the services slashed was flawed (Jo Miles discusses this in detail here).

Consider a family breakdown. A couple decide to separate and have a mortgage and child. Let us assume that the breakup is bitter.  Let us also assume that one of the couple comes from a wealthy background, with a family that is willing to fund a court case, and the other person comes from a background that makes the idea of going to court financially impossible. The idea of mediation sounds fine, but if the financially well off partner is willing to go to court, aware their former partner can’t pay, this creates a two tier system. More succinctly:

The availability of full legal services for the financially weaker party creates a realistic threat of litigation should the mediation fail…the removal of legal aid to bring proceedings effectively removes the prospects of litigation…and removes the incentive to cooperate in mediation.

Before anyone rushes to defend Grayling (and if you do, I’m just going to assume your surname is Grayling), remember that the act, as Miles says:

…attracted huge criticism from the legal professions, non-governmental organisations representing vulnerable groups who rely on legal aid, and from academics.

To be clear, it attracted that criticism before it was introduced. No wonder Gove said he thought people were tired of experts. They never seem to agree with the Conservative party. This story matters. It matters to parents who have restricted access to their children. It matters to those struggling with debt. It matters to those on the fringes of society who might find themselves in trouble with the law. Did you know that Grayling made it so that people who plead not guilty and are convicted are charged £1200? Would you plead not guilty if you knew a guilty conviction would bankrupt you? It’s a risk innocent people might not take. The Conservatives have worked hard to shed the tactic of the nasty party, spending a lot on advisers and branding. I have a radical idea, if they want to lose the tag. Stick with me here, because it’s complicated. But they could try…not being so nasty.

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