Fiona Bawdon

Act for the Act: campaigners should shut up about what happened in 1815 and start shouting stories of ordinary people helped by Human Rights Act

When Lord Faulks, minister of state for justice, suggested that social welfare lawyers routinely earn ‘£200-odd an hour’, everyone with even passing knowledge of legal aid knew it was nonsense.

The response of most in the profession was to wonder what planet Faulks was on, quietly fume, and then get back to the job of trying to survive on hourly rates many times less than that.

Legal aid lawyers are used to being traduced as fat cats with their snouts in the gravy train, after all.

However, the claim was outlandish enough to pique the interest of the fact-checking organisation FullFact.org, which went to some lengths to investigate the veracity of Faulks’ statement. To no one’s great surprise (including, I suspect, Faulks himself), it established that, far from being ‘always necessary’, it is in fact ‘all but unheard of’ for social welfare lawyers to earn that kind of sum.

When challenged by FullFact to justify the £200 an hour claim, the best the Ministry of Justice could come up with was two remote scenarios: the first was nothing to do with advice work at all (senior barristers instructed on Supreme Court cases can earn up to £225 an hour, apparently); in the second, the MoJ pointed to the fixed fee regime for social welfare work: debt cases are paid at a fixed rate of £180, so any debt case knocked out in an hour would equate to an hourly rate of £180. QED.

Now, as social welfare lawyers know, it is rare for debt cases to be dispensed with that quickly (a client’s income assessment alone can take the best part of an hour), and thanks to the doggedness of Sara Stephens, conveynor of the Housing Law Practitioners Association, we now know just how rare.

According to figures released to her by the Legal Aid Agency, only 5 per cent of all social welfare law cases were resolved in an hour last year. For debt work (the area specifically cited by the MoJ in its justification), the average time taken is 12.7 hours, which works out to a rather more modest hourly rate of about £14.

FullFact claims that since its launch in 2010, it has won corrections from ‘politicians from across the political spectrum’. Not on this occasion. Despite being bang to rights, the MoJ declined to make a retraction.

Illegal immigrant’s cat is sad because Theresa May won’t apologise

Similarly waiting in vain for an apology is the moggy much-maligned by the home secretary five years ago at the Conservative party conference. In her 2011 attack on the Human Rights Act, Theresa May famously cited the case of ‘the illegal immigrant who cannot be deported because he has a pet cat‘. The story was fiction, but the kitty in question is, like FullFact, still awaiting a correction.

How is it that politicians know they can get away with peddling myths about legal aid fat cats, or about real cats being given the right to family life under the Human Rights Act?

Much of the answer is down to the power of story telling. What many politicians (or their speechwriters) and all tabloid editors understand is that often the way to win an argument is to tell the best story, rather cite a series of silly old facts.

The MoJ declined to make a retraction because it knows that, aside from a bunch of lawyers and professional fact-checkers, no one cares about dreary statistics showing debt lawyers earn £14 an hour, when there is a compelling story to tell about legal aid lawyers getting fat at our expense.

Lawyers are generally wrong-footed by these kinds of tactics because they are trained to argue using facts (the real kind, not the political kind). Lawyers assume that what works in court – citing evidence to prove your case – is the way to win the public debate.

To be fair, it’s not just lawyers that get this wrong. Even the most senior politician can make the mistake of thinking they can puncture cherished myths with hard facts alone.

Take Nick Clegg’s TV debate over Europe with Nigel Farage. The then deputy prime minister may have had all the best statistics (‘only 7 per cent of Britain’s laws are made in Europe’; ‘the European Commission employs the same amount of staff as Derbyshire County Council’), but Farage had the best story. Clegg’s no doubt well-researched facts were no match for colourful tales of overbearing bureaucrats banning bent bananas, and by common consent Farage won the debate. The UKIP leader didn’t even bother to rebut Clegg’s carefully memorised stats, he simply batted them away, accusing his opponent of ‘willfully lying to the British people’.

One of Clegg’s advisers should have told him that the only thing people remember about statistics is that they are in the same category as lies and damned lies; and, anyway, 75 per cent of them are made up.

As Alan Schroeder concluded after analysing 50 years of American presidential TV debates, trying to counter your opponent’s story with facts invariably fails. The only way to do it is with another story.

It’s a lesson that supporters of unpopular or widely misunderstood causes would do well to learn.

However, before you can hope to come up with a story of your own about, say, legal aid, or human rights, or immigration, you have to identify the story that your opponent tells – and understand why it is so resonant.

Whether lawyers like it or not (and however unfair), the story of legal aid that politicians of all stripes and much of the media tell goes something like this: there is too much of it; it goes to undeserving people; lawyers are doing too well out of it; and anyway the country can’t afford it.

I made this point at the Bush Theatre earlier this year, during a debate marking the opening of Rebecca Lenkiewicz’s play, The Invisible. Also on the platform was Richard Miller, head of legal aid at the Law Society, who leads its access to justice campaign. Miller, whom I like personally and admire professionally (full disclosure: we set up the Legal Aid Lawyer of the Year awards together in 2003), was invited to kick off the discussion by explaining to the theatre audience why legal aid matters. His reply was long on figures (legal aid lawyers only earn around £25,000 a year; at £2bn, the total legal aid budget was a fraction of the annual increase in NHS spending during the Blair years…) but short on emotion. It was only after being prompted that Miller recounted a recent conversation with a housing solicitor in Wales, distraught because his client had killed himself after losing his legal aid.

The Law Society’s access to justice campaign might have more success if it talked less about little legal aid costs, and more about how much it can do.

The Human Rights Act is equally poorly served by its friends. While defenders of the 1998 act bang on about Magna Carta, King John, the barons, Britain’s centuries old tradition of promoting international order, etc, etc, its opponents go for the jugular with stories of how it only protects terrorists and criminals (see left).

In the court of public opinion, the visceral will trump the cerebral every time. If the act is to be saved, its supporters need to shut up about 1815 and start shouting about the bereaved families and ordinary people it helps every day. (This, incidentally, is precisely the aim of the Act for the Act campaign (see above) – which I co-founded in May 2015, along with Caoilfhionn Gallagher and Martha Spurrier.)

As Jonathan Freedland says: ‘The political brain is an emotional brain. It responds not to data but to instinct and feeling.’ The only way to fight your opponent’s populist fire is with some populist fire of your own, he adds.

It is the story (rather than reality) of legal aid which makes it a soft target for cuts, just as it is the story of the NHS which means politicians mess with it at their peril. In the US, the story of gun ownership (enshrined in the Bill of Rights; an emblem of personal freedom) means, no matter how grim the statistics on mass shootings, attempts to introduce even the most modest controls invariable flounder.

Data providers like New Philanthropy Capital may claim that the Chancellor’s U-turn over tax credits ‘shows what can be achieved using robust evidence of impact’ (NPC has its own story to tell, after all), but in fact the opposite is the case.

George Osborne was forced to climb down on this particular issue, despite having made equally severe cuts in other areas, because critics of the tax credit cuts had such a compelling story to tell. A more populist, less aloof politician might have got away with it, but Osborne’s hard-edged persona means he is particularly vulnerable to accusations of heartlessly stomping on the hardworking poor.

Of course, there is a place for empirical data of the kind provided by NPC. But unless statistics chime with people’s existing beliefs or own experiences, they will invariably fail to make much impact (or, as in the case of Clegg, invite accusations of lying). In 1980, American presidential hopeful Ronald Regan demolished the incumbent Jimmy Carter’s statistics apparently showing the economy was recovering with a simple question to voters: ‘Are you better off than you were four years ago? Is it easier for you to go and buy things in the stores than it was four years ago?’

Conversely, even the dodgiest of statistics will serve to reinforce a story which is already widely believed. Just ask the MoJ. Whenever the ‘save legal aid’ campaign appears to be gathering a bit of momentum, the ministry plays its ace. It simply releases the latest batch of figures showing how much top-earning legal aid solicitors and barristers are being paid from the fund.

Even with the best campaign tools, shifting an entrenched debate is a long and uncertain process. Sometimes, however, a change can happen at breathtaking speed. Such shifts may only be short-lived (with normal service being rapidly resumed), but they can still be powerful while they last – and create a platform for campaigners to build on for the future.

The most powerful example of this was last September, when the photograph of three-year old Aylan Kurdi washed up on a Turkish beach provoked a wave of sympathy for Syrian refugees.

Overnight, the prevailing migrant story stopped being about the threat they posed to the British way of life, and became about Britain’s proud tradition of offering a safe haven to children. Even before the pictures of Aylan were published, Yvette Cooper MP had planted the seeds for this different narrative, with a spirited attempt to link the Syrian refugee crisis to Britain’s response during the second world war. In a speech which must have seemed politically risky at the time (and might be again now), Cooper called on UK local authorities to accept 10,000 more refugees. For us to ignore the Syrians’ plight would be immoral, cowardly, and ‘not the British way’, she said. ‘How can we be proud of our history of helping those who fled conflict if our generation turns its back?’

Aylan’s picture appeared on most front pages, and prompted even the Sun to call for Britain to take 3,000 orphans. Memories of Britain’s role in the kinder transport were invoked. The shift in sentiment happened so quickly, that it caught Prime Minister David Cameron on the hop. After a few days of insisting Britain couldn’t take any more Syrian refugees, he finally got in step with the public mood and announced we would accept thousands more, after all.

It wasn’t just the prime minister who was caught out. A few days later, Conservative MP Adam Holloway stood up in the commons to decry bogus refugees playing the system, and cited his own barber having gone back to Iraq for a holiday, despite claiming to have fled the country for his own safety. In his defence, Holloway’s tale was no more made up than Theresa May’s cat story, but the media response was entirely different. Rather than receiving plaudits, Holloway was ridiculed, by the Daily Mail of all papers.

Holloway got his timing and his facts wrong, but his real misfortune was that the barber’s story was so irresistible for the press. Rather than holidaying in Iraq, Holloway’s barber had been taking a break in a caravan in Great Yarmouth.

In the resulting gleeful coverage, it was the Tory toff bemoaning being unable to get his haircut in his barber’s absence, who appeared most alien, whereas the Iraqi refugee enjoying a bucket and spade holiday with his son and Gravesend-born wife, Chelsea, was positively one of us.

As Holloway found, when an alternative story gains traction, there are dangers in sticking to the old script. Generally speaking, the media sees things in black and white and can only cope with one overarching narrative at a time.

I saw a good example of this last summer, when a case to determine whether students from migrant backgrounds should be eligible for student loans reached the Supreme Court. A TV news crew sent to cover the case was called away mid-filming and sent to Calais. They were instructed to stop filming the dozens of British-educated teenagers from the Let us Learn campaign protesting peacefully outside the court, and go to Calais instead, to film hundreds of Syrians and Afghanis, storming barricades in their increasingly desperate attempts to reach the UK.

All too predictably, the more familiar migrant narrative – scary!; alien!; a threat to this country! – trumped the story of the Let us Learn campaigners – admirable!; entirely assimilated!; an asset to this country!

As the journalist apologetically explained,  with Calais dominating the news agenda, there was just no room for an entirely different migration story to be heard that day.

For all kinds of reasons, defenders of legal aid will never find it easy to get a hearing, but the very least campaigners should do is make sure they’ve got their story straight.

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