One rule for them

[This article was originally published by the New Statesman]

One summer evening, back in August 2005, Andrew Michael Southard was arrested because he swore at a police officer.

Southard and his brother were out cycling when two officers stopped them one evening in central Portsmouth. As the officers searched his brother, Andrew took pictures of the incident on his mobile phone saying, “Don’t fucking touch me, you can’t touch him.” This and telling the officer to “fuck off” led to his immediate arrest.

Southard was charged, and later convicted in the magistrates court, of using “threatening, insulting and abusive behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to section 5(1) and (6) of the Public Order Act 1986”.

Southard’s case is not unusual. Swearing at a police officer is the common cause for many young people (as young as 12 in the case of a pint-sized offender arrested and convicted under the Public Order Act because he called an officer “a wanker”), ending up embroiled in the criminal justice system.

For many of the young people continuously stopped and searched by police where I live in East London there is a thin line between a routine stop and a hearing at the mags with a criminal record looming over your future. Irritated because this is the second time you have been stopped today? Stopped at a tube station, angry because everyone is staring and thinking you’re a criminal? Swear in frustration and they have you, a perfectly legitimate arrest under the Public Order Act.

The Sun newspaper reported today that Andrew Mitchell said to a police officer last week: “Best you learn your f***ing place. You don’t run this f***ing government. You’re f***ing plebs.” A kid in Hackney saying half as much to an officer last Wednesday would be in the magistrates court this morning fighting for bail.

So it is galling that Andrew Mitchell has not been arrested, charged, and made to put his defence to the courts, the way countless young people are obliged to every day.

And it is galling that the media and other politicians are chiding him only for being “discourteous” and “rude”.  Even worse, that left-leaning commentators and politicians are only aghast at the use of the word “pleb”*. Those class warriors wringing their hands over Tory snobbery are just as out of touch. Whether or not he said “plebs” is irrelevant if he is allowed to evade the rule of law applicable to the ordinary people.

It is precisely such rampant hypocrisy that fuels the sense of disenfranchisement that contributed to the rioting last year. Then commentators compared looters to MPs fiddling expenses, an odd comparison as the situations are very different. But here, in a rare instance where the experience of a politician mirrors life lived by ordinary people, there is a real analogy to be made. Here we have a politician breaking the law in the same way teenagers do every day, swearing in frustration at a public official. Yet he is not being hauled to court to defend or explain his actions; instead it is trial by Twitter and Radio 4, at worst he may have to resign. Where is the justice in that?

*pleb (Oxford English Dictionary definition)
noun. Informal, derogatory,
a lower class person.

What price justice?

Legal aid scores highly on the coalition government’s list of public services surplus to requirement, and is therefore ripe for cutting. This week politicians debate the Legal Aid, Sentencing and Punishment of Offenders Bill, which includes proposals to reduce the £2bn spent on legal aid each year by £350m.

One way the government plans to achieve this is by reducing the number of people eligible for legal aid – currently around 36% of the population (down from 80% when the scheme began in 1949). A second plan will remove from the scope of civil legal aid particular social problems where people might need professional legal advice to seek redress. This means the government will no longer cover legal costs for people too poor to pay their own legal bills in the following areas: clinical negligence, debt or housing (except where someone faces an immediate risk of homelessness), employment, education (except for Special Education Needs cases), immigration (except for those detained by the state) and asylum issues (except for asylum applications).

Even before the latest proposals critics have argued that too few people are eligible for legal aid in Britain, leaving only the poorest covered by the scheme. But these changes mean that, once the bill is passed, even society’s most vulnerable will find it hard to access justice. The government’s own equality impact assessment of the bill states that those most affected by cuts to legal aid will be ethnic minorities, ill or disabled people and women. In a separate assessment the justice ministry reports that 80% of those affected by proposed changes to legal aid come from the poorest fifth of society.

Not only will the changes impact society’s most vulnerable, they are false economy. Radical changes to the welfare state increase the likelihood of mistakes being made and more people needing recourse to professional legal advice. Already appeals against decisions made under the new work capability assessment have cost the state £50m a year, with 40% of appeals so far successful.

Regardless of the expense, as is the case with the other great pillars of the welfare state, legal aid is a necessary safety net in a civilised and democratic society. In Britain everyone is entitled to liberty and justice, but what is the point of possessing human rights if they cannot be enforced? If legal aid was abolished completely then only the wealthy could access justice, receive a fair trial, protect their rights and liberties, and hold public officials to account: all essential components to the rule of law.

In Britain everyone is entitled to liberty and justice, but what is the point of possessing human rights if they cannot be enforced?

It is thus baffling that Britain’s three main political parties profess a profound commitment to the rule of law, yet proposals effectively decimating the means for ordinary people to access it have sailed through parliament with only minor tinkering. It appears that the retrenchment of legal aid fails to stir the consciences of politicians in the way that other recent issues have, such as Britain’s place in the European Union or the changes to the NHS. If they cannot be persuaded by the principles of the rule of law, politicians debating the bill this week would do well to consider testimonies from ordinary recipients of legal aid.

Testimonies like that of Mrs Whitehouse, who gave evidence to the Commission of Inquiry on legal aid earlier this year. The 78-year-old woman and her husband faced eviction from their home of nearly 50 years because their landlord decided to sell the flat. The couple were “terrified” of leaving their home, where they had hoped to live until they were “no longer well enough to do so”. With little means of their own, the couple were granted legal aid to challenge the landlord’s decision, and won their case at the Court of Appeal. Mrs Whitehouse, whose husband died of a heart attack before the court decision, was initially reluctant to take “money from the public purse”. But says: “I am completely indebted to legal aid. If we had not received legal aid we would have no way of funding this case. We would have had to move out to the flat our landlord was offering, leaving our home of 50 years and all our friends, without knowing that our landlord had no right to do this.”

According to the inquiry report, Unequal Before the Law? The Future of Legal Aid, under the proposed changes to legal aid, “there is a real possibility that Mrs Whitehouse … would not get legal aid. This is because … [they] were ‘merely’ facing the loss of their home and not homeless.”

Other testimonies from the inquiry reinforce the notion that, often, the courts are a last resort for disenfranchised citizens seeking to hold public bodies to account. Darwin Stanley Kealey killed himself while in custody at Wormwood Scrubs prison in 2008. His family sought legal aid to be represented at the inquest into his death. In evidence to the inquiry, his sister Zoe said: “The jury at Darwin’s inquest, which concluded in March 2010, identified no less than nine failings on the part of the police, Serco, the prison and the PCT [Hammersmith and Fulham Primary Care Trust]. The jury found that Darwin died of an act of self harm ‘in part because the risk of taking his own life or harming himself was not recognised and appropriate cautions were not take to prevent him from doing so’.”

The jury at Darwin’s inquest, which concluded in March 2010, identified no less than nine failings on the part of the police, Serco, the prison and the PCT [Hammersmith and Fulham Primary Care Trust].”

In effect, as Zoe sets out in her testimony, Darwin’s death might have been prevented had various state bodies done their jobs properly. The coroner ruled that action must be taken by all authorities involved to prevent the same mistakes being made in future and to prevent future deaths. Such a ruling would not have been made without the support from lawyers, paid for by legal aid, who “worked tirelessly to obtain and scrutinise all the documentation and ensure that evidence was heard to explain the circumstances surrounding my brother’s death,” says Zoe. “My family has found solace in the knowledge that the state has been notified of the failings identified by the jury, and we hope that no other family will have to suffer in the way that we have.”

Ministers in favour of slashing the legal aid bill talk of a compensation culture where the public funds frivolous cases; yet often, as testimony from Mrs Whitehouse and Zoe Kealey illustrate, legal aid is spent on enforcing rights or correcting the mistakes of public bodies. If public officials, from local councils to Whitehall departments, made less mistakes, the bill for civil legal aid would fall by far more than £350m.