The future of our inheritance

I recall well my English Literature O level. Not the detail, but rather the mark that has not faded in the intervening years; a mark made by studying the literature and poetry born out of war. The Cold War was still a louring presence, and only three years earlier a former pupil had become the first British casualty of the Falklands War. He was 32; I was 13.

The memories flood back, not least in this centenary of the Armistice, during those two minutes when we stop to remember conflicts that are now so distant. Poignancy is added not just by thoughts of family members who played their part, but also by personal reminders of two of the most horrendous experiences of the 20th century.

The first is of a visit with my wife to the Memorial to the Missing of the Somme. We went in search of one who has no grave; his name honoured resolutely among those of so many comrades in the Machine Gun Corps. Casting its long shadow over the battlefield at Thiepval, a sense of loss and mourning resonates deeply within Lutyens’ great monument.

The second is of a grandfather’s treasured possession: a relief in beaten copper, given pride of place. A work of art made and given by a man he knew in business in inter-war Poland. The artist was Jewish. Neither he nor his family made it through to the war’s end.

We all still benefit from the efforts of the post-war international community to prevent the recurrence of those events, and our society continues to reflect the social changes brought about by and after each world war. But while we continue (if reluctantly, in some quarters) to provide a place of refuge for those fleeing war and persecution elsewhere, many of our citizens alive today have not lived through any such experience that has affected them close to home. I wonder whether fading memories are leading us to take too much for granted and, out of ignorance or folly, to dismantle some of what the wartime generations fought so hard to achieve.

In 2018, we celebrated the 70th anniversary of the NHS. Not until 2 October 2020 will we be able to mark the same anniversary of legal aid, under the Legal Aid and Advice Act 1949. Will there be cause for celebration, or even just for hope?

A little history may not go amiss. The introduction of legal aid was in origin a cross-party exercise. The committee on whose recommendations it was based was appointed by the wartime coalition government, shortly before D-Day, under the chairmanship of a Conservative peer, Lord Rushcliffe. It reported in May 1945.

The report recorded the existing situation with regard to legal assistance, which depended on the goodwill of the legal profession. It paid tribute to ‘the work done for poor persons by barristers and solicitors,’ often at a cost to themselves, which was ‘too little appreciated by the public’. It concluded, however, that, ‘the total of all the existing free facilities is inadequate to meet the present demand. We think that it would be impossible to expect any extension of gratuitous professional services, particularly as there appears to be a consensus of opinion that the great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance… If all members of the community are to secure the legal assistance they require, barristers and solicitors cannot be expected in future to provide that assistance to a considerable section as a voluntary service.’

True in 1945. True again now, in so many areas, with faith in technology our only attempt at a response.

During Justice Week, we published a new report from Professor Martin Chalkley: Funding for Justice 2008 to 2018: Justice in the Age of Austerity. He records the common assumptions that ‘the cuts… in funding for justice are an inevitable consequence of a decade of austerity and are comparable to the experiences across all publicly funded services’, but he concludes that neither is correct. In real terms, the economy and government expenditure have both grown by 13% in the last ten years, and spending on health is up by 25%: a large proportion of a huge number. In contrast, the taxpayer contributes just 1% to justice, down by 27% in real terms: a large proportion of very little.

He refers to this as ‘... a huge withdrawal of public financial support from… a fundamental and integral part of the state’s functions and obligations’. He continues: ‘An observer might well conclude that the UK government has taken a conscious decision to substantially withdraw public funding for the support of the justice system and for promoting access to justice.’

This withdrawal of the state threatens to undermine not just the rule of law, and our rights commonly understood to date back to Magna Carta, but also all those other social measures implemented by common consent since 1945, never mind the foundations on which our social and business relationships depend. It raises the spectre of a state in which those with power, including the government, can ignore their responsibilities and the rights of others with impunity.

When did we decide, as a nation, to do this: to dismantle legal aid and degrade our court system? Have we thought through the consequences? Do we care?

The truth is that there has been no such national decision: only political expediency. The coalition government ignored the consequences of cutting back on justice, and we await the political judgment of their successors. But recent research suggests that the public does care – 78% agree that justice is just as important to them as health or education.

Legal aid was built, with pride, in straitened circumstances after the Second World War. In our ‘age of austerity’ it has been taken apart and our courts left to wither. How did we come to this? I have no answer; but I lament our fading memories, and how few in politics have the stature and vision of their forebears.

Contributor: Andrew Walker QC, Chair of the Bar