“And I’m being honest with you in terms of saying that we will put more money into the NHS, but there isn’t a magic money tree that we can shake that suddenly provides for everything that people want.”
-Theresa May, Former Prime Minister
For most of human history, human societies have been run as kleptocracies by privileged elites. The elites and the rulers they produce may adopt many names and many guises: kings, emperors, high priests, chairman of the party, or Third Sheep from the Left. The nomenclature of the titles they adopt doesn’t really matter.
The authority of the elites has historically rested on force or the fear of force dressed up with propaganda and often drizzled with religious overtones: a moral or philosophical code is often hijacked by a hierachy and pressed into service by the authorities, because it is useful.
All too often the law and the legal system has also been pressed into service by a state as a tool of oppression, instead of a means of protection for the people and a tool for the dispensation of justice.
Yet throughout the ages people have fought back in rebellions, revolutions and protests seeking to make society a fairer and more pleasant place to live. In particular a key part of the move to improve society has been legal reform: whether the abolition of capital punishment, the ending of slavery, the prohibition on discriminatory treatment or the acknowledgement of human rights, the law can be a powerful engine for change.
In recent centuries with the growth of population, the spread of wealth and education within society and the invention of the printing press, probably the most significant invention in history (with apologies to the internet) in many countries there has been a move away from kleptocracy to democracy with a consequent shift from the interests of the elites to the wider consideration of the good of the people. As Winston Churchill observed:
Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’
In the middle of World War II, perhaps the paradigm example of a total war fought between the great democracies (albeit in alliance with a totalitarian regime) and a brutal fascistic dictatorship, notwithstanding the death and destruction, there was still a desire on the part of many, to reflect on the errors of the past, the iniquities of the present and to plan for a better future for the people of this country after the war was over. The Beveridge Report was published whilst the war was at its height. As Beveridge himself noted:
‘Now, when the war is abolishing landmarks of every kind, is the opportunity for using experience in a clear field. A revolutionary moment in the world’s history is a time for revolutions, not for patching.’
He also stated:
‘Social insurance fully developed may provide income security; it is an attack upon Want. But Want is one only of five giants on the road of reconstruction and in some ways the easiest to attack. The others are Disease, Ignorance, Squalor and Idleness.’
The report went onto lay the foundations of the Welfare State built on and erected by Attlee in his post war government.
Often overlooked is another report from the 1940s which added to the Welfare State, the concept of Legal Aid. Legal Aid was to be a key driver in legal reform, and the expansion of rights and protections for the people of this country and ensured that they could obtain access to justice. The report in question is The Rushcliffe Report.
The first three key recommendations of the report in paragraph 127 were as follows:
1. Legal aid should be available in all Courts and in such manner as will enable persons in need to have access to the professional help they require.
2. This provision should not be limited to those who are normally classed as poor but should include a wider income group.
3. Those cannot afford to pay anything for legal aid should receive this free of cost. There should be a scale of contributions for those who can pay something towards costs.
And the last recommendation:
9. The term “poor person” should be discarded and the term “assisted person” adopted.
Legal Aid was recognised to matter, because it was the key to unlocking the legal system for the poor, or rather the “assisted persons” which in turn meant they could enforce in the courts the rights that were given to them at common law or by Parliament.
Yet since the 1940s there has been a progressive withdrawal and reduction of Legal Aid, ostensibly on the grounds of public funding constraints: that there is no Magic Money tree, particularly one that should shower its bounty on the legal profession.
But as this pandemic has proved beyond doubt, all public spending is a matter of priorities and the plea that there is no Magic Money tree to properly fund access to justice, is disingenuous.
The time is here, now, to think boldly and to devise ways to increase access to justice for people who are simply priced out of the system at the current time.
For myself I think it would be naiive to assume that a system designed in the 1940s for the provision of legal advice and representation can or should be resurrected for the 2020s. The world has moved on. But the real mischief in 2020 is not the destruction of Legal Aid, but the failure to put anything in its place.
Whether this is an alternative system of publicly funded legal advice and representation, or a root and branch simplification of law, procedure and administration of justice could be a matter of debate.
What is unacceptable, is that people are denied access to justice on the basis that they cannot afford it, because they cannot afford to pay for advice or representation and cannot afford to pay adverse costs if they have the temerity to take legal action and the bad fortune to lose their case.
The occasion of this pandemic is the sort of revolutionary moment that occurs from time to time, and it presents a chance to reset and rebuild the legal system, so that it is fit for purpose, namely giving the people of this country access to justice.
The time is surely here now, to press for fundamental reform and a proper share of public funding to be devoted to the justice system as an essential part of a functioning democratic state.