Johann Hari

While the British political class focuses obsessively on the unjust proposals to detain terror suspect for 42 days, a much larger erosion of liberty has been taking place, unnoticed and unmourned.

For a decade now, the Labour government has been slowly whittling down the number of people who can practically access legal aid. The result? More refugees are being deported to hell-holes. More victims of domestic violence are unable to take out injunctions. More women struggle to get a solicitor when their children are being taken into care. Any law is only as good as the rigour with which it is tested – and for the British poor, every single one of our laws is being tested with a weaker and more wan hand.

Lawyers are never a popular profession, conjuring up wig-wearing waffle and LA Law swank in equal measure. So let’s map out what legal aid lawyers actually do in the real world. Jenny Beck is one of the few legal aid lawyers left in Tower Hamlets, one of the poorest constituencies in Britain. A typical day for her was when Tracey Pearman, a struggling young mum recovering from heroin addiction, walked through the door pleading for help. Social services were trying to take her toddler son Lewis into care. Beck managed to draw together the healthcare and support for Tracey that persuaded the court to let her keep her child. Now Tracey’s life is back on track, and she is looking after and loving her son well. This isn’t only humane: it saved us all money. Her legal aid bill was £9000, as a one-off. To put her child into care would have cost up to £60,000 a year, every year.

But government reforms mean that fewer and fewer people like Tracey are now able to find a lawyer. There is a risk that soon, legal aid lawyers will be like NHS dentists – a sweet, unattainable rumour. This story of how this happened begins with the government panicking about the cost of legal aid – and blaming the wrong culprit. The total £2bn-a-year bill has risen by 30 percent since 1997, even as it treats fewer and fewer clients. The government was perplexed. Why was it happening?

There are a number of real answers. The government has introduced 3000 new criminal offences, and ramped up the punishments on existing crimes. If in 1997 a crime was only punished with a £500 fine, it didn’t require legal aid; but if in 2007 the punishment is six months in prison, it does. So the bill soars.

Worse still, British society has remained extremely unequal. As Laura Janes, the Chair of Young Legal Aid Lawyers, explains, “Rising legal aid costs are a symptom of such high inequality. We are dealing with the neediest people at the very bottom.” Legal aid lawyers wade daily through the symptoms of poverty: evictions, fine defaulting, criminalised drug use, and more.

But rather than confront these explanations, the government latched onto a false one: legal aid lawyers, they implied, are scamming the system. They argued that since legal aid lawyers were paid by the hour, there was a built-in incentive to drag out their cases. But there were already tight controls to ensure this didn’t happen: the independent Legal Services Commission (LSC) carefully monitors their work to ensure the time they put in is justified.

Nobody has ever gone into legal aid for the money. The people earning £25,000 a year in legal aid could easily be earning £100,000 in a city firm for fewer hours. They do it because they think poor people should be represented fairly. All the good firms have more cases coming to them than they could ever possibly deal with, so they have no incentive to drag a case out. Only a few lousy firms had any reason to behave this way – and they could be easily winnowed out by refusing to renew the firms that get the worst reports from the LSC.

But the government instead introduced a drastic restructuring of the legal aid system – one which is already having disastrous results. There are two stages to this transformation. The first, transitional phase – which has already begun – is to pay lawyers a flat fee for a case. So taking a case against, say, a local authority on behalf of a homeless person, to force them to house her, now gets a fee of £200, no matter how long it takes, or how complicated. The second phase will be even harsher: firms will bid, in competitive tendering, to see who can offer the lowest possible fee to deal with a case. So a firm might be able to ‘deal’ – in the barest possible way – with this example for £150, or £100. The firms prepared to skimp and skim over the hardest-to-help cases will be rewarded; the firms that seek them out are already going bust.

Ole Hanson, a dedicated legal aid lawyer in Lambeth, tells me he has had to stop representing asylum seekers because the flat fees offered for their cases are now so derisory. “Most of the good firms have pulled out,” he says. “There are very few good immigration law firms in Britain now.” Yet the stakes couldn’t be higher: people are being deported to their deaths as a result.

Since the changes, legal firms have a strong incentive to refuse to treat tough, time-consuming cases, like the mentally ill, people with poor English, the disabled. Caroline Little, co-chair of the Association of Lawyers for Children, told me about a recent case where a woman had to go to twenty-two lawyers before she could find one prepared to help her take out an injuction against her violent husband. Hanson adds: “The worst hit by these reforms are the homeless. When we were paid by the hour, it would cost about £450 to deal with a homelessness case. Now we get £200, which just isn’t economical. You can’t do it in that time. In practice, people entitled to housing under government legislation aren’t getting it.”

Most scrupulous legal aid firms are losing around 20 percent of their income with the implementation of these reforms. This comes after fifteen years in which they received effectively no pay increases. A hefty chunk are simply concluding it’s not worth it and leaving the profession. Caroline Little says: “Many of the best people are leaving, and young lawyers aren’t coming up behind them.”

But Laura Janes puts it most starkly: “We are moving towards the American system, where poor people can get a poor service, or go unrepresented entirely.” Yet all this could be resolved with piddling sums of money in governmental terms. Legal aid costs 0.04 percent of our national income. That’s £34 per person, per year – compared to £400 each for bailing out Northern Rock. The Ministry of Justice itself admits there is already £4bn a year of unmet legal need out there – tens of thousands people being denied fair access to justice because they can’t afford a lawyer. Why hem and haw even further? Even if the legal aid bill trebled to £102 a year per person, wouldn’t that be a small sum to pay to live in a country where the bare essentials of justice are offered to us all?

Feedback is welcome at j.hari -at- independent.co.uk

You can read my article about the terrible deal the British poor get on housing here, my article about why I think the people complaining about CCTV and a 'Big Brother' society in Britain are wrong here, and my piece about Guantanomo Bay and indefinite detention here.