How should socialists use the law, defensively or offensively? What is the role for individual lawyers who are socialists? Campaigning lawyer John Nicholson ponders these and other questions
Legal aid has been cut again and again. Law centres and others have faced the restrictions of contracting, cuts and closures. Many private law providers have found legal aid work to be unprofitable and have ceased to take contracts. Young lawyers seeking to work in social welfare law have found limited opportunities – and now have mountains of student debt to overcome even if they do get a job. People most in need of a lawyer are least likely to be able to afford one, even if they can find one.
Why was legal aid introduced and what is it for anyway?
The reforming Labour Government of 1945 introduced legal assistance in order ‘to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services’.
This was not specifically one of the ‘pillars’ of the welfare state; but it was followed by the development of community law centres, often supported by local government grants. These did provide advice and representation for people who could not otherwise afford a lawyer, especially to exercise their legal rights against oppression such as housing evictions and immigration deportations. They were also at the forefront of campaigns with their local communities. The cuts of the Thatcher era (including to local councils) were followed by the bureaucratic monetarisation of the New Labour contracting regime (starting with the typically named new-speak ‘Access to Justice’ Act 1999) – somewhat ironically more money went into legal aid for the purposes of criminal defence as the Thatcher/Blair/Straw regimes increased the number of criminal offences and therefore ‘criminals’. Then from 2013 onwards the legal aid budget has been cut by a third while similar cuts to local government (particularly outside London) have meant that councils have largely ceased to contribute to local law centres.
For example, there had been nine law centres in the 10 districts of Greater Manchester before 2010. By 2015 only two remained, struggling at the edges of the county conurbation (both finally closed during the last year). If it were not for the campaign to establish a Greater Manchester Law Centre, committed to campaigning as well as providing advice, and founded on the contributions of individuals, community groups and trade unions, the whole of Greater Manchester would be a ‘law centre free-zone’. In parallel the Greater Manchester Immigration Aid Unit is the only not-for-profit provider of immigration legal aid – effectively it is almost the only one in the whole of the north. The recent round of bids for legal aid contracts produced precisely nil applicants for the county of Lancashire, to the outer fringes of which the Home Office was dispersing more and more people seeking asylum. Conversely, a few private providers were taking some immigration legal aid contracts, on the basis that they signed up the claimants, did no work, waited for the Home Office refusals, dropped the cases, and pocketed the first instalments of the money.
But at the same time, the people most in need of legal aid are the people most threatened by homelessness, benefit sanctions and Universal Credit deficiencies, racism (structural or otherwise), and unfair dismissal at work. The political attacks and indeed demonisation have been worsening (remarkably similar language is used for migrants and claimants – bogus and scrounger and so on). As the need for legal advice and representation has grown for this substantial number of people, the institutions and their lawyers have vanished. Even without the latter, people cannot argue for the benefit of their legal right to a secure home if in practice the law has removed that right in the first place. And the councils have sold off (or even given away) their public rented housing – and not built anew. The legal right to social security benefits has been eroded so much that it is not good enough simply to ‘help’ people take an appeal against disentitlement, rather it is the system which must be challenged as a whole. While campaigning law centres have, rightly, sought volunteers (including law students) to accompany people to tribunals, it would be preferable to abolish benefit sanctions and Universal Credit altogether – even if this reduced some of the volunteer opportunities for aspiring lawyers.
Campaigning for Communities, not just ‘fairness’ in the courts
This means that it is even more vital for lawyers and organisations of legal sector workers to campaign, not just for the job prospects of existing and future generations, but for the wider changes needed to remove the causes of the poverty and inequality which result in the symptoms leading to the legal cases on behalf of those affected.
This also means that socialist lawyers and community law centres must work in a different way – not top down, paternalistic, but empowering communities, working with tenants’ organisations and trades unions. Professionally this raises issues. Lawyers are trained to be dispassionate servants of the court, abiding by the right procedures. The Leader of Her Majesty’s ever-so-loyal so-called ‘Opposition’ is a case in point – keeping his hands to his sides, showing no emotion, touching his forelock – that is how he was trained to become a barrister (and Director of Public Prosecutions, presiding over the spycops infiltration of our campaigns for example). But socialist lawyers need to see our role as the legal voice of the dispossessed, not speaking for people but giving people the chance to speak out for themselves. Law centres should aspire to become socialist advice centres, giving communities space to organise their own campaigns.
This is where there is a dilemma between liberal and radical/socialist approaches to the justice system. For some, it is equality before the law which is the key issue. Improving access to the courts, providing information for ‘litigants in person’, creating user-friendly reception areas for immigration tribunals …. all very nice but what matters is what happens in the court room. Justice in front of most judges, who are equally bound to implement the existing law as it stands, is not guaranteed by some meagre steps towards some form of equal legal representation. The whole system is loaded against us. And so it is not just a question of increased ‘fairness’ – essentially the law itself just does not give redress to the people we are talking about, as if it is some sort of dispute about a garden hedge between equally-placed neighbours. It is a question of power – tenant vs landlord, worker vs employer, protestor vs the police, claimant vs the state.
Red lines for individual lawyers have been suggested from time to time. Most progressive immigration lawyers agree that no-one should become an immigration tribunal judge. It is structurally almost impossible to allow appeals within the constraints of the Home Office’s culture of disbelief, the hostile environment generally and the endless new restrictions passed into law by repeated new immigration acts in Parliament – where Labour’s general position has been to say to the Tories that ‘we deported more than you have’.
Should lawyers even boycott the whole immigration system and refuse to appear in court, if all it achieves is some façade of legitimacy? It would annoy the judges, and being ‘annoying’ is something which Priti Patel has made clear is a criminal offence in itself.
Using the law – solidarity not sympathy
Socialists need to understand the society in which the current justice system is placed. Tactically this leads to deciding whether and how to use the law – in defence, with those who cannot navigate the obscure system of the courts, and with public protests in support where possible. Successes in court by South Manchester Law Centre against cuts by the local and national state (2010, 2012), in anti-deportation cases, by the Mangrove 9 against police racism, for example, have rightly relied on public protests and pressure from packed courtrooms. Demonstrations of support for those arrested, when attending court and being released on bail, are essential for maintaining the campaign and particularly the morale of those individuals in the firing line.
This will be vital for the first of the Palestine Action trials (May 17th-25th in Stafford Combined Court), where the protesters who occupied the Israeli arms company Elbit’s factory in Shenstone will say that their ‘offence’ was to prevent the much worse offence carried out by the war criminals. Environmental defendants against Shell won recently on this basis, thanks to a jury of their peers refusing to do what the judge directed them to.
We should always see the law as one element within the campaigning.
And we shouldn’t need to crowdfund for lawyers or to pay off fines meted out to protesters, allegedly on covid grounds.
A justice system needs a just society. We need socialism, not just a reformist welfare state (though that helps). Meanwhile, we need a legal system with proper redress of the external inequalities – and we need to maintain the pressure, from both outside and inside the courtrooms.