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Proletarian issue 58 (February 2014)
The destruction of legal aid is an attack on workers’ rights
The bad old days of Dickens’ novels, when the law courts and lawyers were tools of the rich alone, look set to return.
On 6 January this year, several thousand lawyers – mainly barristers – stopped working in the criminal courts for half a day. The following day, the national press had pictures of a large number of barristers, dressed in their court robes and wigs – which they are obliged to wear every time they appear in the criminal court on behalf of either the prosecution or the defence – carrying placards on which were printed the words “Save our Justice”. Some 200 had gathered outside London’s Old Bailey.

This was an unusual (indeed, unprecedented) sight. Lawyers in Britain are known to be supportive of the status quo, on the whole. What was going on?

Taking away access to the law

As part of the austerity programme of cuts, the government has in its sights the availability and cost of legal aid. Legal aid has been the means whereby those in need of legal advice or representation but unable to afford a lawyer’s fees could receive such advice or representation, either for free or for a considerably-reduced charge, based upon an assessment of their means.

The first Legal Aid Act was passed in 1948 and must be understood in the context of the then government’s creation of the so-called ‘welfare state’. Other articles in this paper have dealt with other aspects of the welfare state before. Legal aid has been of inestimable value to all those who at any time needed legal advice or assistance but who otherwise would not have been in a position to access it.

People will only need legal advice or help if they have a legal problem. The barristers were protesting against the reduction of the payments to them in respect of criminal cases where they appear for the accused; usually, those who are being prosecuted by the police.

If any reader has ever fallen foul of the police, in any context, they will appreciate how needed and welcome is the right advice at the right time. Legal aid does not guarantee this, of course, as one is still up against the set views of the profession and the courts, and the inherent class bias of our bourgeois legal system – particularly in cases where there is a political or racial dimension. But expert help is usually better than none.

Are all lawyers ‘fat cats’?

The barristers’ argument is that if the government further reduces the payments they receive for appearing for defendants in the criminal courts, it will become impossible for many of them to earn even a modest living doing this job – so many able lawyers who can find a job elsewhere will leave that area of the law and defendants will find it impossible to find competent lawyers to defend them.

It was argued that junior barristers sometimes earn as little as £10,000 a year – out of which they still have to meet various expenses. Against this, the government quoted figures showing receipts for senior barristers from criminal cases of more than £500,000 in a single year.

Both sides were quoting accurate figures, but they were not comparable. Barristers are self-employed. They usually work from a set of ‘chambers’ (an old-fashioned word for offices) where a number of barristers – without being partners – will share the cost of running those chambers and paying the staff – including paying the wages of the all-important clerks, who often are paid a percentage of a barristers’ earnings.

The barristers will be paid by the Legal Services Commission (LSC, the body which replaced the Legal Aid Board in 1999) at the end of a case – which may have taken years to reach that stage. Interim payments can be claimed, but these will not be for the whole time spent on the case up until that time.

This is in stark contrast to privately-funded cases, where clients are required to pay up front – before the court hearing – and where the rates are anyway far higher than those fixed by the government in cases where the LSC is footing the bill. There are different rates of pay under the government scheme for junior barristers and senior barristers (Queen’s Counsel, or Silks).

Out of their fees, whether paid by the LSC or the private client, the barrister has to pay their share of the cost of chambers, their cost of traveling to court (often far away from their chambers) and, once theses overheads have been properly accounted for to the satisfaction of HMRC, income tax and the self-employed NI stamp on what is left. Various overheads also have to be paid every year, even if payments to the barrister for work done in that year are not made until years later.

Hence the discrepancy between the two sets of figures. The barristers were talking about take-home pay – what they had left to live on – and the government was referring to gross payments – the equivalent of a business’s gross receipts without deductions for the cost of production or taxes, etc, rather than the profits that are left to distribute to the shareholders. Moreover, the government was referring to the exceptionally high receipts of a few very senior barristers, rather than to what is generally paid to those who work in criminal law.

The financial difficulty of surviving the early years while a practice is built and the cost of the long period of training account for the fact that barristers have usually come overwhelmingly from the monied classes – those who have an income independent of work or whose families can support them through their early years at work as well as through their studies.

Senior judges have been in the past exclusively (and still are substantially) selected from among senior practising barristers. It used to be a requirement for appointment that they could earn more at the bar than on the bench, so they could not be motivated by anything as vulgar as the salary of a judge, while the contribution-free pension was intended to be compensation for their ‘financial sacrifice’ in entering ‘public service’, as they were prevented from doing any more private work once on the bench.

It is not hard to see why judges at all levels, but particularly in the Crown (criminal) and senior civil (non-criminal) courts, have been predominantly white, public-school and Oxbridge-educated males.

Short-lived diversity in the professions

For a few short decades, though, free university and college tuition and local authority grants enabled a certain number of students from more modest backgrounds to enter the legal and other professions (journalism, medicine etc) without crippling levels of debt and to weather those early years.

Since legal-aid work was never as well paid as private work, it became the work that most newcomers, with no family connections in the law, would tend to gravitate towards. This has also been the route into the profession for the majority of women, as well as for ethnic-minority people of both sexes.

Those routes have now become less open with the introduction of tuition fees and the replacement of grants by student loans, so that the much-trumpeted ‘increasing diversity’ of the professions and the bench is likely to be stalled – except to the extent that wealthy women and the children of wealthy black and Asian families avail themselves of these career choices.

No amount of talk by Nick Clegg and others that people will only have to pay their student-loan debt as and when they can afford it convinces would-be students from poorer families. They have a healthy scepticism when it comes to government promises, as these can so easily be overturned in future.

Already, the government is looking to sell student debt to a private company, thus washing their hands of how it will be recovered in future. The profits of the buyer will depend on getting more payments back – and faster – than the government could, so no prizes for guessing what that might mean to the erstwhile student debtors, encouraged to take out the greatest possible debt because of the favourable rates of interest and the assurances of a ‘fair’ system of repayments.

Legal aid – a part of the welfare state

Why was there ever legal aid (or free higher education)? The answer is the same as for all aspects of the welfare state. In the post-World War II period, the bourgeoisie were terrified that ‘their’ working class would see and follow the lead of the USSR, China and the countries of eastern Europe by overthrowing capitalism and creating a workers’ state.

There was a general view among the working class (and a sizeable number of the petty bourgeoisie) after the war that things could not go back to how they were before. The shining example of the USSR – prospering, growing and providing work and a fulfilling and dignified life to all its people while the whole of the capitalist and colonial worlds suffered from poverty and privation – meant that the ruling classes in Britain and elsewhere realised they had to make substantial concessions to the working class if they were not to be overthrown. The working class was armed and trained in warfare, having just come through six years of war, and would be a formidable foe if roused to fight its ’own’ bourgeoisie instead of just others.

Therefore, until the 1990s, legal aid existed to help all who needed to get legal advice of almost any kind. The greatest changes began under the Thatcher government. Eligibility to receive legal aid became more and more restricted, until even those in receipt of benefits such as DLA (the disability living allowance) could not receive legal advice without making a financial contribution.

Once a benefit such as legal aid is not widely available it becomes far easier to remove it altogether, as those without it can be made to feel resentful towards those who are still eligible to receive it.

Changes in policy and the law had also led to an increase in cases of legal proceedings funded by legal aid against both local and central government, increasing the desire of the ruling class to abolish it – although in practice they had to whittle it away one area at a time. Michael Howard became the home secretary with the most orders made against him as a result of successful challenges to his decisions in the High Court by judicial review proceedings – all funded by legal aid.

Also, as a result of the policy of selling off council houses and the government ban on using the proceeds of the sales to build new local-authority accommodation, it became difficult for those who needed one to find a home in social housing. Elaborate rules were drawn up to help councils prioritise applicants, opening the door to a spate of legal challenges.

Then, many of the remaining council houses were transferred to private bodies under a mixture of threats and promises to secure the resident tenants’ votes in favour of the transfer, and the new housing associations immediately started on a more rigorous regime of repossession for rent arrears and other actual or alleged breaches of the tenancies.

All this led to a growth in the importance of housing law and an increase in the payments to lawyers acting for legally-aided tenants or would-be tenants..

The laws of any country are there to serve and protect its state and its ruling class. They are made, interpreted and enforced by functionaries of the state. Thus it is the case that whichever ruling class holds state power at any given time will ensure laws are enacted that protect and further its class interests.

Every time state power is wrested from one class into the hands of another class an early task of the new ruling class has to be to change the laws – usually beginning with a new constitution, which sets out the offices and state bodies who are to rule and to enact and interpret laws.

This process has happened in Britain, but is less obvious because there is no written constitution comprising a single document, but rather a body of law, which has been subject to a continuous process of change. Even the diminishing body of Common Law, which the legal fiction says has existed since time immemorial because it is judge-made law rather than made by Act of Parliament, is subject to reinterpretation by the senior judges for every generation, where it has not been replaced or superseded by Act of Parliament.

Thus it is only to be expected that the law of this country is most concerned to protect the rights of private property and of commerce. It requires years of training and experience to become an expert in any field of law. It is a myth that a person without such training can represent themselves adequately in a court of law; they will not know the principles or procedures on which they can rely on presenting their case.

Someone who defends him or herself may well have a sense of injustice they wish to put right, but there is no guarantee that there exists any law to which they can usefully refer. It looks very likely that we are heading back to a situation as it was in Dickens’ day, as shown in his novels, when access to the law was completely beyond the means of ordinary people.

Law vs mass action

For a few decades, it was possible for some members of the working class to become lawyers and to work for the benefit of working-class people through the medium of the law and the courts. But, while some workers may have managed to get better individual outcomes for themselves and their families, [/ins]in the final analysis, the overall effect has been to help the bourgeoisie promote the illusion that we live in a fundamentally just and fair society. Yet as any lawyer will tell their clients – even when they do have access to one – fight your corner as far as you can, but don’t expect ‘justice’ from the law!

The most successful actions against evictions in the past, for example, have not been through the courts, but via mass action, where tenants have come together physically to prevent bailiffs taking possession and throwing out families or seizing their belongings.

There was method in the government’s mad sale of council houses – to break up tenants’ solidarity by increasing individualism and the illusion of personal property. As it turned out, though, the new ‘owners’ were much more liable to eviction and repossession by the mortgage companies and banks than by the local councils who had been their landlords before.

Decimation of Britain’s heavy industries, the steady emasculation of the unions (with the help of their ‘leaders’) and the de-unionisation and fragmentation of much of Britain’s workforce has all contributed to the lessening of class consciousness and collective action by the working class.

That is the task before the vanguard party of the working class now: to reawaken in the working class both an awareness of the true nature of the bourgeois state and of its own power when united in common struggle with a correct perspective and aim.

In socialist countries, laws represent the interests of the working class because they hold and exercise state power. The right to work and to secure housing can be guaranteed by law because the means to do so are in the hands of the working class, which can actually transform these rights from a legal formality into a practical reality.

This is because, under socialism, wealth created by the working class is held by that class and can be used for their benefit and how they see fit. Wherever there is capitalism and imperialism, such ‘rights’ can never truly exist, because the market and private ownership of the means of production make it impossible to provide work and housing for all those who need it.

Justice for the majority of the population is not to be found in the courts as presently constituted. To get justice we first need to overthrow the bourgeois state and create new laws, after first ensuring that state power and ownership of the means of production is in the hands of the working class – in that order, as we can’t have the second without the first. (‘Nationalisation’ under bourgeois rule is simply a way of keeping essential industries afloat through periods when they are not profitable, and until such time as they can become sources of private profits once more.)

Any struggle for justice under the present system can only effectively be seen as a part of the main struggle for a proletarian revolution; gains can be helpful but the experience of the post-war period provides ample proof that we can never regard gains we make under capitalism as permanent (notwithstanding the best efforts of the ‘left’ wing of the social democrats and Labour party to convince us otherwise).

The solution is not to elect another Labour government with a few ‘better’ or more ‘left’ MPs and policies, but rather to accumulate strength so as to be able to strive for the outright victory of the working class in the struggle for state power.
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