Vox Political: Corbyne Would Restore Legal Aid, Create Proper Legal System

After all the misery created by the Tories, this is a piece of very good news. And one which is probably even now frightening the Tories with the prospect that after their cuts, the proles might just be able to afford legal representation once more.

Vox Political has this report, based on the story in the Solicitor’s Journal, that Corbyn told a ‘barnstorming’ meeting of the Legal Aid Forum that he plans to restore legal aid, and create a proper legal system.
The Journal quotes him as saying

‘At the moment a lot of lawyers feel they can’t be dealing with legal aid, they have to find something else to do, hence the number of firms that don’t want to get involved in legal aid or just do commercial law because that is the only way they can make a living. It is not good for anyone. We need a proper legal system,’ said Corbyn.

‘It is a deterrent for young people going into law in the future, so we end up with young lawyers not being able to work,’ he continued. ‘If you can, stick at it. Try and stay there because people need good lawyers. They need that representation. I want to see the restoration of legal aid in the new parliament and hopefully we will have a Labour majority to bring it about.’”

From what I understand, there are a number of problems afflicting the legal profession at the moment, including a high level of graduate unemployment. I’ve been told that graduates with a legal degree must find a place in chambers within two years of graduating, otherwise their degree effectively doesn’t count, and they will never get a job as a lawyer.

One of the ways the Tories have attempted to disempower working people has been through savage cuts to legal aid, which means that many now cannot afford legal representation. All this has been done to save money and stop frivolous and ridiculous lawsuits. Of the same type, no doubt, as the ‘vexatious’ requests for information under the Freedom of Information Act, which they are also attempting to close down as a waste of public money, etc.

Medieval kings, like Henry I in the Twelfth century, liked to pose as ‘lions of justice’. Richard II even set up a new set of courts to provide cheaper justice, and therefore make legal redress more widely available. And one of the most celebrate clauses of the Magna Carta bound the Crown not to sell, delay or deny justice.

This is very good news for everyone worried about the Tories’ attack on the legal profession and the ability of ordinary people to defend themselves and their interests from injustice.

Now expect the Tories and their lapdogs in the press to start quotemining him again to try and show him as a dangerous, terrorist-loving, unpatriotic Commie.

Mike’s article is at:http://voxpoliticalonline.com/2015/11/04/labour-would-restore-legal-aid-and-a-proper-legal-system-vows-corbyn/

From 2013: Private Eye on the Cruelty, Stress and Anxiety of the Fitness-to-Work Tests

Atos may be pulling out of the Fitness-to-Work tests, but they’re still in charge of the Personal Independence Payments and the tests themselves will still be administered, as the Void has pointed out on his post about it today. I found this article from Private Eye’s ‘In the Back’ section attacking the tests for the harmful stress inflicted on the sick and disabled in the issue for 8th – 21st March 2013.

Fitness to Work Tests

Sick Joke

More stories are emerging of the extreme distress and hardship caused to sick and disabled people wrongly found fit to work by Atos, the French private contractor, and consequently denied benefits by the Department for Work and Pensions.

Last week the Eye was alerted by lawyers to the case of a woman with fragments of bullet and shards of her skull permanently lodged into her brain, who was deemed by Atos to have no care needs or mobility problems – despite a change in her mental state leading to extended periods of unconsciousness.

The Commons public accounts committee last month blamed ministers for the “misery and hardship” suffered by claimants, saying that while Atos (which has earned more than £100m a year over the past four years for its “work capability” contract) was getting assessments disastrously wrong, the government was doing nothing to check or improve reliability.

Nor was there any sign of improvement, with Cizizens Advice reporting an 83 percent increase in the past year in the number of people asking for support on appeals against decisions. Charities and legal advisers also complain that people with long-term, incurable or terminal conditions often face repeated assessments to prove how unwell they are, despite supplying doctors’ and consultants’ evidence that their health or condition will never improve.

Those most in need of help, meanwhile, are about to get another kicking from the government as, from next month, legal aid is withdrawn in the vast majority of benefit cases. The government is reneging on a promise from former lord chancellor Kenneth Clarke to allow free legal support in “point of law” cases at the first-tier tribunal level – the state of the tribunal process where most cases remain.

Clarke had said he was concerned about the impact on disabled people making their initial appeal against a decision by the DWP on their benefit entitlement But not so Chris Grayling, his successor, who wants to save £350m a year in legal aid by 2015 by axing free advice for most cases involving child custody, divorce, medical negligence, immigration, employment, housing debts and benefits. According to Grayling’s own figures, an estimated 623,000 people will lose out. A number of legal advice centres have already closed as the proposed cuts are already taking effect on law firms and centres, which can only claim legal aid after dealing with the case.

As one lawyer told the Eye: “What this means, in reality, is that some very ill and distressed people will simply not have the capacity to challenge appalling decisions.” Benefits tribunals will meanwhile get clogged up with badly prepared or even meritless appeals – and the only beneficiary will be Atos.

A few weeks ago Bristol’s lawyers joined a one-day strike protesting against the cuts to legal aid. It should be unacceptable that over half a million people – 623,000 – should be denied justice simply because they cannot afford it. It goes against the clause in Magna Carta, in which the king promises that he will not ‘deny, delay or sell justice’. Even earlier, English kings like Henry I sought to present themselves as a ‘lion of justice’. One of the ancient legal courts was set up by Richard II – the same Richard against whom the peasants revolted and who was overthrown by Henry Bolingbroke, Henry IV – to provide better access to justice for his subjects. This shows just how much contempt and respect the Tories have for the concept of impartial justice, which doesn’t distinguish between people on grounds of their class or economic background. And the stoppage of legal aid after Kenneth Clarke’s promise to the contrary is just another example of a broken Tory promise.

As for Atos earning £100m a year over four years, during which time as many as 55,000 people a year may have died after being assessed as fit for work, and denied benefits – this is also monumentally unjust and iniquitous. Clearly, Grayling is afraid that widespread access to legal help by some of the victims of the assessment just might stop or severely hinder the policy. Hence the government’s decision to stop free legal advice.

As for Atos stating it’s getting out of assessments, I wonder if they also share Grayling’s fear, and are getting out while the going’s good. It looks like they’re afraid that if they continue administering the assessments, one unfairly assessed claimant or group of claimants may win and the company be faced with fines, damages and compensation payments. And that might seriously hurt their profits, not to mention whatever they believe passes as their business reputation.

Historical, Constitutional and Philosophical Observations on the Tories’ Plans to Privatise the Courts

I have to say that I’m still somewhat stunned by the Conservatives’ suggestion that the court service should be privatised. This seems to be absolutely barking mad, and attacking the most fundamental, basic duty of the state, at least as it has existed in the West since the ancient world. In the Middle Ages the basic function of the state was to provide military protection and promote justice. There were private courts on the manors of the feudal aristocracy, along with the system of royal courts that also dispensed justice at local and county levels. These were the hundred and shire courts of Anglo-Saxon England. After the Norman Conquest, Henry I introduced the ‘justices in eyre’, judges that went on regular set circuits around England hearing cases. I believe the assize system was introduced by that other ‘lion of justice’, Henry II. One of the reasons England never developed the more extreme versions of feudal serfdom that existed on the Continent was because Henry I insisted on his right as king to govern and enforce his laws over the peasantry through the royal courts, thus preventing the aristocracy having the absolute control over their tenants and villeins that their counterparts in the rest of Europe had.

It was during the Middle Ages that the system of royal courts, such as the Court of King’s Bench, developed. In the Middle Ages and 16th and 17th centuries, kings were expected to dispense justice as they were God’s anointed through the coronation ceremony. This did have a very authoritarian aspect to it, as in the views of some constitutional theorists in the Tory party, it meant that as the king was the fountainhead of justice, he was above the law. This view was gradually altered and finally rejected with the growth of constitutional checks on the crown and the Glorious Revolution. Social Contract theory also supplied a rationale for royal government: the king was the people’s representative. Kings had been chosen and set up by their subjects at the very beginning of human society, in order to protect them, their livelihoods and property. As their representative, he had the right to rule them, preserving their freedom and protecting them from injustice and attack. Finally, in an age when all government is personal government, kings had a right to rule because the countries they ruled were literally theirs. It was their property, in the same way landowners lower down the social scale owned their estates, and administer justice over the serfs there.

Clearly the decline of feudalism has removed these circumstances as the basis of royal government, just as centuries of secularisation means that extremely few people would argue for the return of an absolute monarchy on the grounds that they had a sacred right to govern through their coronation. They did, however, act as the core of the modern state through their establishment of the central institutions of justice. Since the time of Oliver Cromwell’s Commonwealth, at least, the state has been recognised as a separate institution to the kings that governed it. Hence Charles I was executed for his crimes against England, an idea that was so radical that it was almost unthinkable then. Nevertheless, the execution established the fact that Crown and state were separate, and that the judicial system, as part of the state, had the power to judge the monarch. Justice and the courts thus became the core feature of the modern concept of the state.

This is threatened by the privatisation of the courts. The ancient conception of the state was t6hat it was something that belonged to the public. For the Romans it was the res publicum, the public thing. The term has survived in the modern English word ‘republic’ and similar terms in the other European languages, including the Russian respublik. 16th and 17th century political theorists, like Locke, used the term ‘commonwealth’, from the words ‘common weal’, the common benefit or wellbeing. The state is therefore something that belongs to and affects everyone, even if it is effectively governed by a very select view, as it was before the extension of the franchise in the 19th century. This is threatened by the privatisation of the courts, which places justice in the realm of the private, rather than the public.

There are important constitutional problems with this. Courts have had the right to impanel juries, and try and punish offenders because they received their legitimacy from the state, either through itself or as a crown institution. If privatised, the courts would not have this source of legitimacy. They would be a private company, acting in its own interest. They would have the administration of justice as their function, but like other companies their main role would be to provide profit to their shareholders. Essentially, the justice they dispensed would be private justice, albeit administered on behalf of the res publicum. Now I can imagine that some traditional Conservatives would object to this. Peter Hitchens on his blog for the Mail on Sunday has stated that he objects to private prisons on the grounds that only the state has the right to persecute and punish crime. This is a very good point. If the courts are privatised, it raises the question of the difference between them and, say, a protection racket run by a local gangster. Both can claim to be providing protection for the people under their rule, and both are equally acting in the interest of private individuals. A privatised judicial system might still have the claim to be providing public justice if it has a contractual relationship with the state, or some other constitutional tie that establishes it as the legitimate source of justice. Nevertheless, its constitutional legitimacy as a public institution would still be considerably weakened.

The idea that courts can be privatised is something that the Tories have taken over from American minarchism and Anarcho-Capitalism. One of the founders of modern Libertarianism, E. Nozick, believed that the functions of the state should be reduced to the barest minimum. This was to be enforcement of contracts. Rothbard, the head of the American Libertarian party, argued that the courts should be privatised and opened up for competition. They would have no power beyond the voluntary acquiescence of the parties in dispute in the courts’ decisions. It’s a small detail, but it also shows the difference between American Anarcho-Capitalism and the libertarianism now promoted by the Tories. Anarcho-Capitalism is peculiar, in that although it promotes capitalism to its fullest extent, it shares many of the same concerns and features as left-libertarianism, such as Anarcho-Communism. Both forms of Anarchism share a common belief in the absolute sovereignty of the individual. Both also view the state as inherently oppressive. The great Russian anarchist, Mikhail Bakunin, declared ‘He, who says ‘the state’, says oppression’. Both types of libertarianism also stress individual’s sexual freedom. They consider that people should be able to engage in whatever kind of sexual relationship they choose, provided that it is reciprocal and between consenting adults. Thus Right Libertarians tend to differ from other Conservatives in their acceptance of homosexuality and free love. There is also a tendency in Right Libertarianism to demand the legalisation of drugs, on the grounds that the individual should have the right to consume whatever recreational substance they choose. Again, this is in marked opposition to traditional forms of Conservatism, which tends to be far more puritanical.

Now it seems to me that the Tories here have lifted some of the ideas of Anarcho-Capitalism but have very definitely rejected the ethos behind them. Margaret Thatcher believed very strongly in ‘the strong state’, reinforcing the powers and providing more funding for the police force and the security services. In doing so, she alienated many Libertarians, who bitterly resented her authoritarianism. Robin Ramsay, the editor of the parapolitical magazine, Lobster, wrote a piece on the death of one of the founders of the Libertarian Freedom Association a little while ago. Ramsay is a member of the Labour Party, although very critical of New Labour and the influence of the transatlantic Right in the Party since the Second World War. He stated in this article, however, that he had been supported in publishing Lobster by the aforementioned Libertarian. This gentleman regarded him as another Libertarian, albeit socialist, rather than capitalist, but felt that he had a common cause with him against the growth of state power. And he bitterly resented Margaret Thatcher for what he saw as her betrayal of libertarian principles. It thus seems to me that if and when the Conservatives privatise the courts, they will nevertheless retain and possibly extend their powers as the agents of state control.

And this raises a further point on the legitimacy of these courts derived from Anarchist theory. 19th century Anarchism and its predecessors denounced the state and its system of justice, particularly because of its class basis. Europe was governed by the very rich – the aristocracy and the rising middle classes – and the laws they passed protected and enforced their power. During the early 19th century, for example, the British government passed a series of punitive legislation curtailing working class dissent and protest in order to prevent a popular uprising, similar to that which had occurred just across the Channel. The governing class was composed of rich landowners, who passed laws heavily penalising poaching. At the time poaching was regarded as a traditional right held by rural labourers. It allowed them to feed themselves during times of famine and economic depression. It did, however, represent a threat to landed property, who responded by passing laws prescribing long sentences and transportation for poachers. Most of the legislation passed in 18th century England was designed to protect property, not human life. Hence the enactment of the death penalty for crimes like sheep stealing. It was in this legal environment that the Anarchists attacked state justice as aristocratic, capitalist justice, and believed that only through the destruction of the state would a truly classless society emerge.

Since the extension of the franchise in the 19th century and the gradual ascension of the House of Commons over the House of Lords, the state and its institutions have had a greater claim to be genuinely impartial. This has been especially true since the rise of the classless society in the 1960s. This would, however, be undermined by a privately-run court system. The courts would be run by their shareholders and investors, who are by definition capitalists, for their own profit. Justice would mean private justice on behalf of the rich. And almost certainly it would lead to corruption and conflicts of interests. How would a system of private courts successfully prosecute a leading shareholder or the chairman of the company that runs them? Everyone is supposed to be equal before the law, but in those cases there would be great opportunity for the accused to interfere with the judicial process in his favour. In short, he could put pressure on the judge, as a friend or employee, and gain acquittal.

The Conservatives have claimed that they are rolling back the frontiers of the state. They aren’t. They are privatising its institutions, but these still have all the authority and coercive power of the state, but are far more likely to be partial in their decisions.

The privatisation of the courts is a profoundly immoral idea, that completely undermines the idea of the state as the dispenser of impartial justice regardless of social origin. It should be rejected without hesitation.