Why won’t the Lib Dems defend legal aid?

Being in power so you can implement party policy is the whole point of politics.  At least, that’s what I have spent the last 20 odd years thinking.  But, after just one evening at the Liberal Democrat conference, I have realised that actually the whole point of being in power is just that, being in power.

The burning question for many Lib Dems here in Birmingham is whether party policy is being ignored, or at least quietly bypassed by their MPs in government (still feels odd writing that).   A prime example of this is the Legal Aid, Sentencing and Punishment of Offenders Bill(thankfully shortened in the blog world to LASPO).  The bill, at least the legal aid bits of it, is in direct conflict with the party’s policy, and a number of high-profile Lib Dem members recently took to the pages of the Independent to voice their concerns.

I can understand why many in the party are distinctly unhappy about the route the government is taking on legal aid.  One activist, lawyer and campaigner for civil justice said it seemed that all of the Ministry of Justice (MOJ) cuts were falling on legal aid, virtually abolishing it, and that the bill ‘could not be further from the party’s policy’.  For Lib Dems, who like to see themselves as the ‘conscience of the government’, it’s hard to square their view that they should stand up for the disadvantaged with LASPO.

A major objection to the bill is the increase in litigants in person that will inevitably follow.  It’s breathtaking how relaxed (or should I say indifferent) ministers are about this, even when they’ve admitted there are ‘gaps in their understanding’.  I am not necessarily a cheerleader for the legal profession, but there are times when, frankly, trying to do something yourself would just be bonkers.

Medical negligence and domestic violence cases are not the same as writing your own will.  To suggest that someone who is involved in such a situation would be able to manage their own way through the legal system, even if they are legally trained, is just bizarre.  It certainly won’t be mitigated by a bit of software, as the minister in charge of the reforms, Jonathan Djanogly, has claimed.

The arrogance of ministers across the piece on LASPO is also pretty shocking, if not surprising.  Alternative proposals to save money from both the Law Society and the Bar Council have been summarily dismissed with little examination and the consequences of some of the cuts are being swept unceremoniously under a pretty flimsy carpet.  For example, ministers seem unmoved by the prospect of defendants in domestic violence cases, who won’t be eligible for legal aid, cross examining their alleged victims.

Clause 12 of the bill is downright dangerous: it would remove the automatic right to legal representation in the police station.  Not only will this effectively mean access to justice is the gift of the police and the government, it will probably lead to chaos and waste money.

Djanogly, again showing how incredibly blasé he is about justice, has said the government has no intention of enforcing the clause, but they’ll leave it in the bill anyway.  Why?  So that the next time there are riots they can bring it into force and summarily bang up anyone who stole a couple of TVs?  Or the next time there’s a terrorist outrage on our soil they can ‘extract confessions’ from anyone who fits the profile of an extremist?

Lib Dem activists and voters might reasonably expect that ministers in the yellow corner would come out fighting to defend civil liberties and the vulnerable against the onslaught of LASPO.  They will be disappointed.  Tom Brake MP, the man in the firing line of those angry lawyer activists last night, could only say he understood their concerns and blame poor communications between Lib Dem MPs and their justice minister, Lord McNally, who, as his name suggests, sits at the other end of parliamentary corridor.

Well if all that’s standing between having a legal aid system and not is the inability for a few people to speak to each other, then I’ll give up my own time to act as a runner between them.  Brake’s second point was almost certainly more telling – there is a limited likelihood that Lib Dems will be able to influence the proposals.

What it all boils down to is politics.  As the minority party in a coalition government that relies on compromise,  Lib Dem ministers have to choose which boats to rock, and it doesn’t look as if LASPO is one of them.  I should probably have put money on a Tory government trashing legal aid, but the desire to hang onto power can be the only explanation for Lib Dem ministers to acquiesce in the carnage.

Otherwise, why are they ignoring the evidence that spending money on welfare law, the biggest legal aid casualty, saves money further down the line?  Why neglect the likely social cost for the 68,000 children who will be affected by reducing access to the family courts?  Why let the bill be pushed through before the much-anticipated family law review has even been published?  Why ignore the overwhelming evidence that litigants in person will not only struggle to get justice, they will clog up the courts at a time when many of them are being closed?  Why risk ‘advice deserts’ where legal aid firms, already operating at the edge of profitability, decide to shut up shop?

It’s not sufficient to blame the ‘hypocritical’ Labour MPs who are trying to hold up the bill, but would probably have brought forward their own significant cuts to legal aid had they won the 2010 election.  And it’s not acceptable to blame the increasingly dysfunctional MOJ because, at the end of the day, ministers tell civil servants what to do.  It’s not even satisfactory to blame Djanogly, even if he does seem increasingly disengaged and out of his depth.

Rather, Lib Dem ministers should do what their members and the people who voted for them would expect them to:  stand up to the Tory bullies to defend legal aid.

Louise Restell’s article first appeared on the QualitySolicitors blog http://blog.qualitysolicitors.com/