The truth about Magna Carta and legal aid cuts

Family Law|July 2nd 2015

I thoroughly enjoyed reading Mr Justice (Sir Nicholas) Mostyn’s speech Magna Carta and Access to Justice in Family Proceedings, which he gave recently at the National Access to Justice and Pro Bono Conference in Sydney.

The first half of the speech is devoted to a discussion of Magna Carta. Now, I would not say that I am any sort of expert upon the subject of the Charter, but I do know enough to have found many of the claims recently made on its behalf by those who should know better (including, as Sir Nicholas points out, our own Prime Minister) to be extremely irritating in their inaccuracy. I was therefore very pleased to read Mr Justice Mostyn thoroughly debunking those claims. As he says, contrary to popular belief it did not benefit the common people one whit, and:

“It does not newly restrain the power of the monarch. It does not establish separation of powers. It does not create a representative Parliament. It does not invent trial by jury. It does not create habeas corpus. It does not provide a forerunner for legal aid…”

Which brings me nicely on to the second half of the speech, which is essentially a tirade against the cuts to family legal aid imposed by the coalition government in 2013.

As Sir Nicholas says, it was inevitable after the crash of 2008 that serious curbs would be imposed upon the legal aid scheme. However, he says: “What no-one anticipated was the savagery of the cuts, with private family law proceedings, save in certain very limited circumstances, being taken out of scope altogether.”

Sir Nicholas then powerfully sets out the arguments against the cuts, made not just by him but also by others, including eminent lawyers and parliamentarians. I am not going to rehearse those arguments here – I strongly recommend that you read the speech in full, if you have not already done so – instead, I will limit myself to a couple of points.

Sir Nicholas mentioned a paper prepared in 1943 by a Dr Cohn, which was considered by the Rushcliffe committee, whose report led to the introduction of legal aid in 1949. Dr Cohn said in that paper:

“Legal aid is a service which the modern state owes to its citizens as a matter of principle. . . . Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc, so it should protect them when legal difficulties arise. Indeed the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law.”

After reviewing the arguments against the cuts, Sir Nicholas concludes:

“Even allowing for the need to make cuts in order to reduce the fiscal deficit I do not accept that in the critically important area of private family law it has been necessary to sacrifice individual justice on the altar of the public debt, at least not to the extent that has happened. It is not clear to me why this particular pillar of the welfare state has had to fall. I have yet to hear a convincing riposte to Dr Cohn’s argument cited above, which has, until recently, been part of the bedrock of the post-war settlement.”

The other point, and a particularly depressing one, is that the cuts were made by the last government, and we recently had an election, which could have involved a change to a government that was prepared to reverse the cuts. However, as Sir Nicholas points out, no party other than the Greens included a reversal or mitigation of the cuts in its election manifesto. The reason for this can be found in a quotation Sir Nicholas includes from the former Court of Appeal judge Sir Alan Moses:

“No one seems to care about the plight of those who have neither the ability to protect themselves in a legal sense and cannot afford a lawyer (sic). That [people] are deprived of the chance of legal aid seems to figure at the very bottom of concern in this election. No one thinks they are ever going to be faced with circumstances that require someone to hold their hand and safeguard them in the frightening and alienating circumstances of a court of law. Who cares about the prisoner whose rights are abused and needs legal advice and assistance? Who cares about the immigrant who asserts they are a genuine refugee? Those who cannot afford access to the courts are often the unpopular minorities and there are no votes in helping them.”

As I say, all very depressing. The truth I’m afraid is that, just as Magna Carta was not for the benefit of the common people, nor certainly are the legal aid cuts.

The full speech can be read here.

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