I was absolutely delighted to see a series of articles in the Guardian on Boxing day, on the decline of legal aid and how the legal aid and funding cuts have decimated our judicial system.
It is about time this was given a proper airing and not presented as a case of ‘fat cat lawyers’ getting their comeuppance.
There are no ‘fat cat’ lawyers in legal aid work, the fat has been cut to the bone – in some cases so far that lawyers doing legal aid work are more or less working for free, after you take off the inevitable costs of running a law firm.
But the losers from the legal aid cuts are not the lawyers – they have all found other work. It is the clients. People in desperate circumstances who need legal help. Who now have no-one to turn to – sometimes even if they can afford to pay for it.
My own experience
When I worked as an assistant solicitor in the 1990s, practically all law firms did legal aid. Even big posh firms had family lawyers who took on a bit of legal aid work.
When I set up my own law firm one of the first things I did was obtain my legal aid ‘number’ and we did legal aid for several years, even getting a legal aid franchise at one time.
However, I became concerned at the cuts in the legal aid budget and decided to change from working largely for legal aid litigants and tenants to work for landlords (who also need help and who could afford to pay me). In due course, this led to the setting up of Landlord Law and the business I run now.
There are very few lawyers who specialise in housing work now. Indeed, as it says in this Guardian article, there are vast swathes of ‘housing law deserts’ where tenants are unable to get any help at all – because there are no longer lawyers available to do the work. Lawyers are not going to train to do work where there are no paying customers. However well-meaning they may be.
Help on the net and its limitations
To a certain extent, the internet has stepped in to help. In housing law, for example
- There is the Shelter site which has a huge amount of help and guidance.
- We on the Landlord Law Blog give a certain amount of help answering questions in the ‘blog clinic’ and running articles explaining the law and how it works, and
- Over on Nearly Legal Blog, they publish reports of cases which will help non-lawyers (although it looks as if this may stop for a bit while Giles writes his book),
I have a list of places where tenants can get free help here.
However, there is a limit to how much help a website can give. Both Giles and I have to earn a living and cannot spend all our time writing free guidance. Even if we did, not everyone is capable of running their own case, however much help they get.
For example, in this Guardian article reports a Judge, speaking on condition of anonymity, said:
“[Litigants in person] are a nightmare, 99.9% do not understand what is going on in court or outside court; they don’t know a good point from a bad one; they don’t understand the law; they don’t understand what they have to prove and they don’t know how to ask a question.
It is my firmly held view that the courts are full of people who would not be there if they had been able to approach a solicitor”
Law is not easy, it takes years to train. And Court rules were developed on the basis that they would be used by trained lawyers, not ordinary people without help.
New laws but no justice
There is also the fact that if you can’t enforce the law there is not much point in having it.
We are now starting to see some tenant-friendly laws coming into force. For example, the new Homes (Fitness for Human Habitation) Act 2018 gives tenants greater rights against landlords who rent sub-standard property.
But with no lawyers to help them bring their claim – how can tenants get justice? Some will succeed but it will not be easy for them. Going to court is never easy, even for trained litigation lawyers.
But problems don’t go away just because people can’t to enforce their rights through the courts. They go underground and we get an unjust society. Is that what we want?
Legal aid was not perfect
Mind you I’m not saying that the old legal aid system was perfect because it wasn’t. A lot of public money was wasted on cases which should never have been brought, simply because the solicitors were able to get legal aid.
The system was very unfair on people of modest means facing a legally aided litigant. It also has to be said that some of my very worst clients were legal aid clients – who seemed to enjoy messing us around.
Some people don’t respect what they don’t pay for.
So the system had its abuses and problems, but on the whole, it was a force for good. Now it is (effectively) no longer available we are going back to the way things were in the middle ages, where the only people able to get ‘justice’ were the wealthy.
Thoughts for the future
I don’t know what the answer is. But it is unlikely that we will ever get back the legal aid system that we had.
In housing, maybe a new housing court might help. At least we would get Judges who understood the law better and maybe the new court could support a team of free advice lawyers to help those attending without representation.
But a proper functioning justice system is one of the cornerstones of a civilised society and everyone should be concerned when it is put at risk.
When you dismantle something and take away it’s funding, it’s like when Humpty Dumpty fell off his wall. It’s hard if not impossible to put it back together again.
This is where we are at the moment. It is not a happy place.