Editorial | The Guardian | 26 October 2011
Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to
Where you have notional rights, but not the means to enforce them, things always get messy. That much has been acknowledged since Henry VIII's day. A 1531 statute provided that subjects who could not afford court costs should not have to pay them – so long as they submitted to some other punishment, such as the pillory, in the event their case was lost.
Legal aid was designed to fill the justice gap for the poor in a more durable way. As it is rolled back through retrenching "reforms", the emerging disarray will make a pelting with rotten fruit seem like a tidy solution. Top judges are not given to opening their mouths unless they have something to say, and yet yesterday several supreme court justices told the Guardian about the disorderly logjam in prospect. Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to do so. It is like inviting people who have never even been car passengers to drive straight on to the motorway. And the court staff and clerks, who might previously have provided pointers away from the worst pile-ups, are being cut back as well.
Still worse damage will be done away from the courtroom. Whitehall dismisses the modestly paid solicitors who dedicate themselves to serving the poor as a "producer interest". But the pay freezes in prospect for other public servants are positively indulgent as compared to the hammering these professionals are already taking: yesterday Labour peer Lord Bach argued in vain against a statutory order for an outright cut of 10% in fees. Things will get very much worse with the legal aid, sentencing and punishment of offenders bill, which is coasting towards a third reading in the Commons next week. With the wholesale removal of state support from whole swaths of law, such as social security, the frail infrastructure of community law centres and advice bureaux could wither away. These not-for-profit outfits should be integral to any "big society", yet somehow their rent has to be paid, and, in practice, it has often been through legal aid fees. The government's own impact assessment does not disguise that very many will shut their doors.
A shame, but one that cannot be avoided in these fiscal climes, is the best argument ministers can muster. That really won't do. The Ministry of Justice might save but the exchequer will not do so, since unaided cases will soon translate into destitution that will continue to trigger costly interventions from various social services. A coalition that talks a good deal about English liberties should reflect on Lady Hale's reminder of an old saying, which is acquiring a chilling new resonance. "In England, justice is open to all – like the Ritz."