By Luke Massey
There is an African proverb which says: ‘a hippopotamus can be invisible in dark water.’
The adage sounds a precautionary note about one’s ignorance: and the dangers it might invite.
I was reminded of it while speaking to local lawyer James Higbee about the Government’s proposed cuts to legal aid, when he said:
‘These cuts to legal aid hurt the country in a very profound way, it strikes at what I think makes us a decent and fair country. But you may not notice, or care, right up until the point you desperately need a lawyer.’
In the current economic climate: where the narrative of austerity frames every wave of cuts to public spending as a necessary salve to the country’s fragile economy – the waters are certainly dark.
In such murky pools of economic restructuring: the proposed cuts to legal aid are fast approaching but remain not quite in focus. Despite public protests by lawyers early this year – for many they are merely a foreboding outline in uncertain currents.
James Higbee works for Tuckers Solicitors, the largest provider of Criminal legal aid in the country, with offices in Brixton and Camberwell. I spoke to him to find out more about how cuts to Legal aid could affect us all.
So what is ‘legal aid’?
‘Legal aid is very simply the system whereby the state will pay for your legal costs in certain cases,’ says Higbee, ‘and lots of legal firms have a contract to deliver these services.’
Tuckers Solicitors’ is heavily centred around legal aid work (constituting around 80% of its cases), for this work the Government pays them to represent people who cannot afford to pay for representation.
But not everyone is eligible. The two criteria are income and the “interests of justice”. For the former, a rule of thumb for qualification is: ‘if you are on benefits, you qualify, if you earn between £12k and £22k you might qualify, and if you earn over £22k: forget it, pay privately’.
The “interests of justice” test, Higbee says, ‘boils down to “Is it complicated?” and “Will you go to prison?”.’
‘If your case then goes to the Crown Court, where the most serious cases do, everyone is entitled to legal aid but will be assessed to see what they can contribute. If you have a decent job (say over £25k) then your contributions tend to be about 750/month. It is not cheap.’
What exactly is the Government proposing?
To contextualise this, Higbee says that there has been a steady process of reducing the worth of Criminal Legal aid work, and that since 1997 there has been a ‘real-term reduction’ in how much it pays to firms providing the service. ‘The most common figure is that it is worth 40% less than it used to be.’
He describes the recent round of cuts proposed by the Government as ‘probably the most savage’, covering both Criminal and Civil legal aid.
‘So far, the fall in income experienced by legal aid firms has been a gradual one that we have all tried to adjust to. I have been in practise 10 years now, and it is all I have ever known. Many of my colleagues have been made redundant, or left the profession, or work flexibly. Many more have stayed, but morale is as low as anyone can remember.’ The cuts, Higbee says, would be ‘simply devastating, and heap more pressure on an already struggling sector.’
He says that the Government essentially wants ‘to cut the money but retain the same levels of service. I can only speak for the criminal side of things, but we have been cut to the bone already.’
‘At present in Brixton,’ says Higbee ‘we take on nearly every case presented to us, it is a point of principle that we don’t pick and choose… I consider myself to be a servant of the community, and legal aid is a way for private firms to perform public service. If these cuts come through, we will have to reject lots of uneconomic cases, we won’t be able to offer the free drop in advice services, both in the office in Brixton and to other community projects, we do at present, and this will be repeated across the industry.’
Higbee has grave reservations about the way in which the Government has conducted itself during the debate over legal aid cuts – citing disingenuous tactics from the Justice Secretary Chris Grayling and the Ministry of Justice (MoJ).
‘As a profession, we have engaged, consulted, offered costed alternatives to cuts, tried to speak some sense. In response you get the MOJ leaking documents to the press about “fat cat legal aid lawyers”, deliberately creating false stereotypes that rich lawyers are rolling in Legal aid money. Nothing could be further from the truth, and in any event, this is not about lawyer’s salaries (I could earn triple my salary by moving to commercial law, assuming they would have me!) but about small businesses having their revenues cut to such an extent that they go out of business.’
‘The standard MOJ response, when yet another respected commentator explains how foolish further cuts are, is that we have the most expensive Legal aid system going and that this is all necessary to get the best value for the tax payer. It is utter nonsense, the National Audit Office contradict this, but it is part of the deceitful narrative that persists.’
Higbee believes that the Government is playing politics with this central foundation of our legal system: a belief shared by many legal professionals who took to the streets at the start of January to protest against cuts to legal aid.
‘It is easier to focus on rich lawyers and undeserving criminals, when in fact most of the cuts to legal aid provision will impact on the poor and the vulnerable,’ he says. ‘By definition, these are the people who need Legal aid; the person fleeing persecution and fighting being deported, the battered wife applying for a restraining order, the family fighting for the return of their child wrongly held in psychiatric hospital.’
‘These cuts hurt justice as a whole, not the wallets of a few lawyers. So opposing the legal aid cuts is not about how much lawyers will earn. It is about having equal access to the law, no matter what your station in life. At present we have a legally illiterate Lord Chancellor, parachuted in to take a hatchet to one of the jewels of this democracy, which is your absolute equality before the law. This is genuinely in danger of being a thing of the past, which will take us back to justice being dependent on the depth of your wallet.’
Like the swimmer in dark waters: ignorance of what the currents will bring is no longer an option.