On Liberty (12 page)

Ingenious discrimination is not the preserve only of politicians and policymakers. A Welsh scientist developed a device in 2005 that perfectly encapsulates arbitrary discrimination against children and young people. The ‘mosquito’ capitalizes on the fact that for most of us hearing deteriorates from our early twenties onwards, in the upper registers in particular. It is a device that emits a high-pitched noise capable of causing intense discomfort or even pain to younger ears. Completely unregulated from a public health point of view, it is available on the open market for shopkeepers and householders to attach to their property in order to disperse young people and stop them hanging around in the vicinity. If a young mother were regularly to push her pram past a particular shop, she might have no idea why her baby always screams at that point. At Liberty, we once bought a ‘mosquito’ in order to test out its effectiveness. I remember being completely oblivious to it (I was already in my early thirties). Then suddenly, one of our trainee solicitors covered her ears, burst into tears and ran out of the room in evident agony.

What kind of signal or lesson in respect, in the sense of fairness or mutuality of esteem, does this device provide to teenagers? Some women might take the view that men present a greater danger of nuisance or even violence on our streets than their female equivalents. But imagine if there were a physiological difference in hearing ranges: would this justify targeting men for such degrading treatment? And what if this kind of technology could be targeted against people of particular races? It doesn’t bear thinking about and quite simply would not be allowed except in relation to our young whom we are charged – yes – with protecting, but also with nurturing, teaching and I would even dare suggest, respecting as well.

I’m hardly the first person to have raised these issues. Indeed,
one need only quote the maiden speech of a now senior politician who entered the House of Commons in 2005 and made his parliamentary debut later that same May:

The message that I received loud and clear in this campaign was that as we seek to revive our spirit of community, youth services must become a higher priority. What many young people on our streets told me is that there was nowhere for them to go and nothing for them to do. The young people whom I met are not yet cynical, nor are they without hope, nor are the vast majority troublemakers, but many feel that nobody really listens. They are tomorrow’s voters – or regrettably, non-voters. Respect is a two-way street. Many older people feel that young people do not show enough respect, but young people feel neglected by our society.
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Ed Miliband ended his speech on a proud personal note. He himself, he reminded the Commons, is the son of immigrants: in his case, of a Jewish refugee from the Nazis who fled his native Belgium for Britain in 1940.

The dilution of fairness and the creation of quick-fix mutant ASBO justice belittles the serious suffering of victims and sometimes creates extra ones in the form of miscarriages of justice. It flirts with mob rule and is particularly tough on the young. But in such an authoritarian climate, other democratic dangers lurk. Protection from ‘distress’ quickly morphs into a right ‘not to be offended’ and in a free society this is one right that must never exist. If we are all so infantilized and thin-skinned that we seek a right not to be irritated or offended, what are the consequences for cogent political dissent?

It’s no coincidence that the period of ‘Asbomania’ also saw laws passed that banned people from protesting in Parliament Square; peace protesters arrested and prosecuted for reading
out the names of the war dead at the Cenotaph; young men arrested for wearing anti-monarchist T-shirts or for carrying placards suggesting that ‘Scientology is a cult’; and schoolchildren ‘kettled’ like cattle for protesting against university tuition fees. ‘Kettling’, incidentally, allows police effectively to detain protesters when there is no suspicion of criminal behaviour.

Human rights law with its special protection for free speech and association has offered considerable defence against this authoritarian trend. But even this kind of constitutional or ‘higher law’ will remain a dead letter if the people it is designed to protect, in particular the poorest and most vulnerable, simply cannot afford or otherwise gain access to legal advice and representation. Indeed, the lack of free, independent and fearless lawyers is one reason why it has been possible for some of the most notorious tyrannies in world history to have laughably exquisite and faultless written constitutions which bear no resemblance at all to the day-to-day experience of the ordinary people living under them. So the rule of law can be overtly undermined not only by tampering with traditional legal process protection but also by effectively locking the courtroom door to all but the wealthiest and most powerful.

I grew up in a post-war Britain that prided itself on the welfare state. Apart from my parents, the greatest influence on me was the state education system, which shaped my life chances from toddlerhood to the age of twenty-two, when I left the LSE with a law degree and modest student debt. I never had to pay a tuition fee until I went to read for the bar as a post-graduate, and even that was a real struggle.

I’m also proud to have grown up in a country where, if you were knocked down by a car in the street as I once was, on the way to school, you would be scraped up by an ambulance and taken to the emergency room without anyone checking your purse or wallet for money or health insurance, but only to find out your name and contact details of loved ones. Politicians recognize all too well the pride that we all share in our NHS,
which is presumably why they try to outdo each other in their declarations of devotion to it and portray any reforms they want to make to it as managerial and organizational rather than threatening and ideological. Some would argue that sentimental speeches are a sleight of hand that allows politicians to institute quite radical and fundamental changes to healthcare while putting on white coats in fantasy photo ops designed to make them look (or even perhaps feel) like Dr Ross or Dr Kildare.

But contrast the NHS with legal aid, another great pillar of the post-war settlement designed to benefit all of us. When I grew up, if you were poor and accused of a crime, or in legal difficulty related to your family, welfare, housing or debt, you could get access to free advice and representation. Such early advice is often crucial, before people’s problems spiral out of control. But the most vulnerable have some of the most crucial power relationships in their lives with parts of the state. It was hardly surprising that the authoritarian politicians of the mid-90s and beyond would seek to undermine this important potential check on their power.

The same politicians that gave us the Human Rights Act began to denigrate the lawyers and legal services that were capable of implementing that legislation on behalf of ordinary people. Tony Blair – a trained barrister – made speeches attacking the ‘gravy train’ of legal aid. But the reality was that most lawyers involved in the provision of legal aid were paid less than NHS doctors – their medical equivalents – not to mention some of their college chums who went to the City to earn hefty multiples of their salary. Legal aid is a hard furrow to plough. Often, clients – ranging from suspects from the ‘Asbolands’ of the inner cities to the detainees of the War on Terror – prove to be difficult for many and complex reasons. It is another particular trick of authoritarian governments the world over to equate lawyers with the clients they represent as a means of undermining the importance of providing access to justice. It’s
worth remarking, however, that the lawyers who made fortunes advising the people and financial institutions that plunged the world into recession in 2008 rarely attracted the same political or media bile.

One devastating attack on legal aid was to restrict its availability to fewer and fewer people over time. I suppose that one of the reasons so many of us love the NHS and indeed that other national, if too easily tarnished treasure the BBC, is that we have all experienced its value to some degree or another. Even by the time the Human Rights Act was brought into force in 2000 civil legal aid was strictly means tested. It was becoming increasingly difficult to access unless you were almost completely destitute. Ownership of any assets – a home or a car, for example – would most likely disqualify you from receiving it. So going to court – for instance, to assert their privacy rights – was going to prove almost impossible for ordinary working people: the taxi driver, nursery worker and whole swathes of the population.

Meanwhile, movie stars received in-depth coverage for – quite rightly – defending their rights to a private life. Even the same media empires that campaign to trash human rights legislation would fight bitter legal battles over free expression. We would also of course read about the Act used as the last defence of the terror suspect and refugee and all the rancid populist political rhetoric that went with those high profile post-9/11 test cases.

Even if one of these ‘decent hard-working law-abiding people’ were able to gain access to free advice or legal representation, suing the authorities still brought with it the risk of having to pay the deep-pocketed defendant’s costs in the event of losing. At the same time law centres were dying, so this kind of free service was barely able to scratch the surface of unmet need. Most people could never take on such a financial risk.

Because those of modest and moderate means have been squeezed out of the system many important test challenges to
bad practice and abuses of power have not been brought. What’s more, as legal aid practice became less financially sustainable and ever more of a bureaucratic nightmare, excellent firms went out of business. Tooks Chambers, who defended striking miners in the 1980s, took on miscarriages of justice such as the case of the Birmingham Six and represented Stephen Lawrence’s family, dissolved in December 2013 as a direct result of legal aid cuts. Legal aid deserts began to appear in large parts of our small country so that people had to travel miles to find help – that is, if they still qualified for it.

As if New Labour’s undermining of public sympathy for legal aid through spin, rhetoric and exclusion from protection weren’t bad enough, things would get even worse under the coalition government. The Legal Aid Act 2012 removed whole groups, not just of so-called ‘ordinary people’, but now the very poorest in the land, from legal support in their times of greatest personal need. For most cases involving housing, welfare, medical negligence, employment, debt and immigration, financial support was no longer available. If you lost your job in the recession and were struggling to deal with debt there was now to be no help, practically until the point that you faced eviction – a cruel and counterproductive social policy if ever there was one, when a little good early professional advice might help people back on track, and be cheaper for the taxpayer too.

Under the same Act, legal advice and help on welfare law were no longer available, unless and until you exceptionally found yourself arguing some rarefied point of law in a higher tribunal. In practice and given the repeated evidence of bad decision-making at the Department for Work and Pensions, this means many children, disabled, poor and otherwise vulnerable people are not able to understand their benefits. People didn’t get the financial support to which they were entitled in the worst recession in living memory.

In all but a handful of exceptional cases private family matters were largely removed from legal aid provision. The reason
given for this was that mediation should be provided instead. So if Social Services take your son or daughter from you, you may qualify for legal aid. But if your ex-partner denies you any contact with your child and refuses to entertain mediation, no advice or representation is available.

And if it weren’t bad enough that Parliament should pass a law to deny access to justice to the worst off in austerity Britain, the Act contains a power for the Lord Chancellor (who is also the Justice Secretary) to continue removing further areas of legal provision by ‘secondary legislation’, that is, legislation which is hardly scrutinized by Parliament at all. One of the first measures brought in by this all-too-common underhand legislative method was to impose a residency test on people seeking legal aid. Quite right too, you might think: why should the British taxpayer fund people abroad or newly arrived here to sue our government? But what about the torture victims of our military and security adventures overseas? If they had been excluded from our courts, how would we have known what was being done in our name? What about the women in immigration detention centres who allege sexual abuse by their male guards? We should never forget that ‘public interest law’ is so named for a reason: if the powerful can get away with flouting anyone’s rights, in the end they will flout everyone’s.

Predictably, prisoners were also excluded from legal aid should they want to challenge their treatment or conditions. Few will shed tears over such a measure but we should remember that, to the amazement of people all over the world, the age of criminal responsibility is only ten years old in this country. Young teenagers can find themselves in custody and subject to ‘control and restraint’ and other cruel treatment, treatment capable of causing serious injury and even death. Fifteen-year-old Gareth Myatt choked and died while being restrained by guards at Rainsbrook secure training centre. If you’ve ever had a child who has been in trouble, remember the mother who was David Blunkett’s constituent during our ASBO debate in
Sheffield. The Prison Reform Trust informs us that 30 per cent of boys and 44 per cent of girls in custody have spent some time in care. One in eight of the children in custody has experienced the death of a parent or sibling, while 46 per cent of women prisoners have suffered domestic abuse. If it’s really too hard to care about other people’s children, remember the frailties and vulnerabilities of our own and where we go but for the grace of God or just plain good fortune.