Open Eye: Orwell would have recognised the 'Newspeak' in new law Bill

The Access to Justice Bill, now before Parliament, will not necessarily live up to it's title, warns Gary Slapper, Director of the OU Law Programme
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The Independent Online
In an essay called Politics and the English Language, George Orwell wrote that "the slovenliness of our language makes it easier for us to have foolish thoughts".

In Nineteen Eighty-Four he gave chilling examples of governmental techniques exploiting this phenomenon. We met the Ministry of Truth whose purpose was to propagate misinformation in Newspeak, and the Ministry of Peace whose purpose was the prosecution of war.

The Access to Justice Bill, announced in the Queen's Speech, has been seen by some as a similarly mis-titled Bill as its proposals, if implemented, would restrict rather than widen access to justice.

At its zenith in the 1970s, the legal aid system, which was established as a branch of the welfare state in the 1940s, encompassed 80 per cent of the adult population. The other 20 per cent could easily afford legal services by themselves. Then the annual budget began to spiral upwards and, from the late 1980s, ministers tried to cut and stifle the system.

By last year, the proportion of us eligible for legal aid had dropped from 80 to 40 per cent. Most people, however, who - according to the rules could pay for their own lawyers - are, in fact, not in a position to do so without drastic action such as selling their car.

This year the money spent on legal aid will be over pounds 1,600m. Hence the government's decision to end it and bring in other ways of dealing with public demand for legal services.

We already have a growing area of lawyers undertaking civil legal work on the basis of a conditional fee arrangement - "no win, no fee". One problem here, though, is that only cases that lawyers feel very confident about are getting through.

A citizen who wishes to vindicate a right he or she has about something critical, say about their work or about an injury they have suffered, and who has a 65 per cent chance of winning would have been allowed to sue under the old legal aid rules but will find it very difficult to get a lawyer today to accept the gamble on their case. The Bill also extends the use of conditional fee arrangements to cases involving matrimonial property.

The Access to Justice Bill proposes to establish a Legal Services Commission to replace the old Legal Aid Board. Civil legal aid will be replaced with a new scheme, the Community Legal Service (CLS) fund, which is aimed to save money by carefully funding a variety of legal service providers as opposed to just paying solicitors for all the work deemed worthy of support from public funds. Specialist lawyers and advisers (including Citizens Advice Bureaux workers, and legal executives) working under contract with the CLS will replace the local law firm with the legal aid logo (two people sitting across a desk) in your high street.

Now, proposed in the Access to Justice Bill are the plans for a new government Criminal Defence Service (CDS) which will dispense contracts to defence lawyers for publicly-funded criminal cases. A danger of this is that, over time, the government could ensure that the CDS did not engage defence lawyers with a reputation for causing trouble.

The Law Society says that campaigning lawyers like Gareth Pierce (the role which earned Emma Thompson an Oscar nomination in In the Name of the Father) who acted in the cases of the Guildford Four and the Birmingham Six, or Jim Nichol, who represented the appellants in the Carl Bridgewater case, could be treated as personae non grata by the CDS.

Another development giving cause for alarm is the centralisation of governmental power over the criminal justice system. Historically, there has been some comfort taken in the fact that, unlike the police in Nazi Germany or Soviet Union or Pinochet's Chile, British police were local police not at the disposal of central government. The magistracy here (which deals with 97 per cent of all criminal cases) was also, historically, local.

Recent changes, however, have effectively created a criminal justice organisation and put ministerial hands on all the important levers. They have allowed the Home Office to announce a new mission statement for all police services (including the aim of securing a "just society" - definitions on a postcard, please). They have also allowed the re-structuring of both the Crown Prosecution Service and the Magistrates' Courts Committees so that both organisations will work on a 42-region basis to exactly match those of the police forces.

It would be hyperbolic to present the UK at the turn of the century as moving into the shadow of Orwell's dystopia of tyranny: "if you want a picture of the future, imagine a boot stamping on a human face - for ever". Nonetheless, eternal vigilance, is a cheap price to pay for freedom, especially when it just means taking care not to accept governmental language or slovenliness of thought uncritically.