Legal Aid

The route to Americanisation

PUBLISHED September 25, 2013

There are few people more mendacious than the politician banging the populist drum against a group of vilified citizens ? in this case, "criminals?. However, there are few groups less persuasive than a gaggle of lawyers complaining about their salaries (save, perhaps, for a "bonus? ? the recognised collective noun ? of bankers whining about the same thing). Yet here we are: with the Secretary of State for Justice, Chris Grayling, talking about cuts in legal aid.

USA: compare and contrast

It is often said that the Americans never look beyond their shores ? and hence never fully understand the potential benefit of creating their own NHS, of controlling guns, or of declining to invade foreign countries. Sad to say, the same criticism may be made of the British, in reverse: this country often does not understand what the "best of British? really means. My wife and I spent $5,000 a year each to get bad health insurance and mediocre care in the US; now I am back in the UK, the NHS delivers superior treatment for a far lower price. I used to be mugged at gunpoint fairly regularly in New Orleans; the British street thug is exponentially less prolific.

And while, in America, it can truly be said that capital punishment is where those without the capital get the punishment, in Britain, there is a real sense that a poor person can get something that approximates to the justice of the wealthy.

The Americans live in an entirely inverted world: if you are indigent and face capital punishment, your lawyer may be paid a pittance. (Not so long ago, I sued the state of Mississippi under the federal minimum wage law because we were paid around a dollar an hour for trying to prevent an execution.) Meanwhile, corporations pay lawyers up to $1,000 an hour for handling the relatively inconsequential topic of their business deals.

Britain is also out of balance ? a corporate lawyer is going to be paid much more than someone working for legal aid rates ? but at least the disparity is less patent. Ultimately, the cost to the taxpayer is lower in the US, which spends an average of $11.86 per capita per year on criminal legal aid; but they get what one might reasonably expect for just 43 seconds of a corporate lawyer?s time.

How to win

However, we shall not, as lawyers, win this debate by complaining about money. I am not qualified in the UK, but it cannot be about "us? as lawyers ? any more than the right to a fair trial is about the lawyer. Rather, we have to be clear and strategic: we must identify our jury; and we must understand what moves our jurors.

The jury must surely be the Lib Dems and those in the Conservative party, both in the Commons and the Lords, who care about justice. (It is foolish to waste time pretending that Mr Grayling is anything other than a hanging judge willing, at best, to tinker with the machinery of death.)

Our jurors will not be much swayed by the money arguments; but they will be concerned by the human face on those who will suffer from the legal aid cuts, and about some of the nefarious motives behind Mr Grayling?s proposals. You, the members of the profession, will know the best cases better than I do. But, from my vantage point, there is one obvious argument: why deny legal aid to people who were tortured with British collusion abroad? How else will the victims of torture ever get justice?

The closest Sami al Saadi, his wife and children got to a Club Med vacation was a rendition flight, sponsored by MI6, to Libya, where they faced months and years of torture. Reprieve did much of the work on the case; we were paid nothing. To be sure, the British lawyers received legal aid, but nowhere close to the £2m that the government agreed to pay in compensation ? a decision that had everything to do with official British criminality.

Or consider Abdelhakim Belhadj, who offered to settle his own case against Jack Straw, Sir Mark Allen and MI6 for just £1 each, if only they would apologise for sending him to Gaddafi?s torture chambers for seven years. The litigation will ultimately cost the British taxpayer a great deal of money ? not because Belhadj wants to waste it, and not because Reprieve will receive a single penny of it, but because various British officials can?t bring themselves to say that simple word: "Sorry.? To be sure, we can change the legal aid rules to make it easier for officials to cover up their sins, but that will hardly be the apogee of British justice.

You will know the other stories about an innocent prisoner who will be denied a fair hearing, or the homeless person who mistakenly got caught up in a riot.

The jury will also be influenced by where the stories appear. Many lawyers spurn the Daily Mail; this is a mistake. It is ironic that Labour government policy was driven by the Mail far more than the Guardian; but it is unwise to ignore that fact. The Mail can be persuaded into campaigns on issues of importance: it has been perhaps the loudest media voice against British complicity in torture. These are Daily Mail stories.

Party politics

Ultimately, if Labour is not with us on these issues, we shall conduct an honourable exercise that is doomed to failure. But then we shall spend the next few years reconstructing what politicians deign to destroy: such is the nature of the inconsistent march towards true justice.