POVERTY AND THE LAW
In 2018 the UN Special Rapporteur on extreme poverty and human rights reported that in the UK 14 million people, a fifth of the population, live in poverty. Four million of them are more than 50 per cent below the poverty line and 1.5 million are destitute and unable to afford basic essentials.
From April 2020 to March 2021 the Trussell Trust distributed 2.5 million emergency food parcels. Child poverty is defined by the Child Poverty Action Group as parents being unable to pay for essentials, including food, housing and clothing. This is reported to affect one on four children in the UK. 46 per cent of children from black and minority ethnic groups are in poverty, compared with 26 per cent in white families.
The richest ten per cent of the UK population are now 100 times better off than the poorest. This is the highest level of income inequality since shortly after World War II and is high compared with other industrialised countries.
Poverty and the law If people are not able to exercise their legal rights because of their poverty, then those rights have no real existence outside legal textbooks. No matter how sophisticated the legal system or how detailed the rules and procedures surrounding such rights, then in reality they do not exist for those who are too poor to exercise them. Without money, many rights under English law are illusory.
For example, English law has a highly-developed and complex set of rules aimed at protecting workers against unfair dismissal. There is a clear general right not to be unfairly dismissed. If a worker is dismissed and he or she reasonably believes that they have been unfairly treated, then in theory they have the right, in some circumstances, to complain to an employment tribunal. If they are a member of a trade union, then the union may pick up the costs of legal advice and representation and bear the risk of paying the other side’s costs.
The rules and procedures surrounding unfair dismissal have become so complex (essentially because of the involvement of lawyers and the adversarial nature of English justice, resulting in a mass of decided cases which interpret complex statutes) that it is very difficult for non-lawyers to exercise these rights themselves.
For the non-unionised worker without money, it is almost impossible to exercise the right not to be unfairly dismissed. The procedural complexity of tribunal proceedings is daunting, and lawyers have made it worse.
The key to understanding the English legal system is the central role of money. I have lost count of the number of my clients who have not been able to start or continue their cases because of lack of money. My conclusion can only be that where legal rights cannot in reality be exercised because of poverty, then those rights have no existence. Their existence, for the poor, is abstract and theoretical. Outside plush solicitors’ offices, barristers’ chambers, legal textbooks and university lecture rooms, legal rights have little relevance for people disadvantaged by poverty. Almost every aspect of English law has to do with money or claims for money.
The American context is different, but the general principles are the same. The central role of money in the American legal system has been described as follows:
· Most of the law is of, by and for the wealthy, who, at every stage of its proceedings, have significant advantages over the poor. The law costs a great deal of money and, because of the poverty of many, its substantial provisions are irrelevant to their lives. Court fees, lawyers’ costs and fees, transcripts, appeals, the preparation of witness statements, all these procedural deterrents are too costly when a poor person seeks to enforce legal rights.
· Poor people do not have legal problems like those of the private plaintiffs and defendants in law school case books. People who are not poor are like case book people: in so far as the law is concerned, they lead harmonious and settled private lives; except for their business involvements, their lives usually do not demand the skills of a lawyer. Occasionally, someone gets hit by a car, or decides to buy a house, or lets his dog bite someone. The settled and harmonious pattern of life is either broken or there is a threat that it may be broken. This is the law school model of a personal legal problem. Law schools train lawyers to take care of such problems and to understand the role of a lawyer in terms of such problems.
· Poor people get hit by cars too: they get evicted: they have their furniture repossessed: they can’t pay their utility bills. But they do not have personal legal problems in the law school way. Life for poor people is not a settled and harmonious affair in which the law ever intrudes. It is a constant involvement with the law in its most intrusive forms. For instance, poor people must go to government officials for many of the things which not-poor people get privately. Poverty creates an abrasive interface with society: poor people are always bumping into sharp legal things. The law school model of personal legal problems, of solving them, and returning the client to the smooth and orderly world in the TV advertisements, does not apply to poor people. In England, as in the US, for many clients, the fear of cost can be greater than the fear of the legal problems which they face. The lawyer who seeks to advise poor clients in their best interests can find himself acting as a financial adviser before he gets down to work on the legal aspects of the case.
The classic, ancient cry that there is one law for the rich and one for the poor rings as true as ever. Everyone knows that it is true, but it needs to be repeated.
Bankowski and Mungham (Images of Law) stated their view that lawyers, in the long term, could have no material interest in conceding very much to the poor. The more the client knows, the less the lawyer is likely to be able to earn. And a significant erosion of the monopoly of legal knowledge is not in the lawyer’s interest either, for if this base begins to wither away then so does the claim of the lawyer to power and privileges in society. The lawyer has need of the poor, but what we have yet to establish is whether the poor need lawyers.
Justice in England is often a purchasable commodity. Except that it ceases to be justice when it is bought. It then becomes class justice operating in favour of the haves against the have-nots. The way to understand many of the apparent absurdities which emerge from the English legal system is to realise that it is, essentially, as far as most members of the profession are concerned, a business obsessed with profit and loss.
The general rule seems to be that to understand any puzzling point of law or seemingly perverse court decision, first understand the influence of money and the pursuit of profit.
A civil case is best fought, not with reference to the rights and wrongs of the case, the relevant law, the strength of the evidence or the right to justice. The key issue is money. What, in financial terms, does the claimant seek to achieve? If this approach is adopted, the case will run smoothly and the chances of success are increased. This is the crude reality of English civil law in the twenty-first century.
Any law lecturer can confirm that many students choose to study law because they hope to be able to make plenty of money from it. Many of those whose main motivation is the pursuit of justice, or helping people with legal problems, can soon find that their ideals fade away in the hard world of legal commercial reality.