Lawyers for the poor

Legal advice, voluntary action and citizenship in England, 1890–1990

Katharine Bradley, Kate Bradley

• Publisher: Manchester University Press
• Year: 2019
• Print ISBN:
  9781526136053
• eBook ISBN:
  9781526136084
• Topic: History
• Subtopic: Social History
• Index: History

From the 1890s onwards, social reformers, volunteer lawyers, and politicians increasingly came to see access to affordable or free legal advice as a critical part of helping working-class people uphold their rights with landlords, employers, and retailers – and, from the 1940s, with the welfare state. Whilst a state scheme was launched in 1949, it was never fully implemented and help from a lawyer remained out of the reach of many people. Lawyers for the poor is the first full-length study of the development of voluntary action and mutual schemes to make the law more accessible, and the pressure put on the legal profession and governments to bring in further reforms. It offers new insights of the role of access to the law in shaping ideas about citizenship and civil rights in the twentieth century.

1

Making free legal aid and advice the business of state and profession

Until the beginning of the twentieth century, poorer Britons had access to the civil law in the High Court through the in forma pauperis procedure, a provision established in the thirteenth century that enabled those who declared themselves as paupers to be given legal support free of charge. The procedure was infrequently used, as it required the lawyers to act for free, with all incurred expenses to be met from their pockets. By the early twentieth century, the legal profession had contrived to put enough obstacles in place to make obtaining legal help through this avenue almost impossible.¹ However, whilst ‘poor’ people could and did find themselves in the High Court, it was by no means the main court that people on lower incomes used for civil matters. Rather, the ‘everyday’ courts for most people were the county courts in the case of civil matters and magistrates’ courts for criminal cases – and there was no provision for those cases.

Before the end of the nineteenth century, seeking advice or support on legal and welfare matters could take various forms. Historians of the late eighteenth and early nineteenth centuries have written about the omnipresence of law in everyday life, from the spectacle of public executions, as examined by Thompson or Gatrell, to the implementation of law in everyday, personal relations, as in the work of Steedman.² Steedman has examined magistrates, the public and the writing of legal letters, with a focus on what has come to be known as the civil law. Magistrates were the individuals tasked with implementing and policing statutory law on the ground and thus with the governance of the nation.³ As Gray and Davis have both noted in respect to different time periods, the London magistrates’ or police courts were also highly accessible to ordinary people who needed additional help in righting wrongs.⁴ The Old and New Poor Laws also brought people into contact with the law and officials. King and Jones note how the Poor Law of 1601 created a national welfare framework, delivered through each Anglican church parish and funded through local taxes on property.⁵ Charlesworth further notes how the system before 1865 allowed local autonomy, reflecting the different realities faced by communities.⁶ It was, further, a discretionary system, in which individuals could write in support of their case or ask a respected member of the community to serve as an advocate for them, writing a supportive letter, which often had the power to change the official decision made. Where such advocates did not get the response they wanted, they would help to escalate the issue to the local magistrates. People knew the law and were able to make their case as to how it applied to them. Scandals, as Shave notes, were also an important means of reforming and shaping the system.⁷ Writing ‘pauper letters’ and making use of advocates – members of the local community in good standing, who were not usually lawyers – defined the ways in which people engaged with the Poor Law and were in turn part of the bigger picture of political participation before mass democracy in the twentieth century.⁸ King and Carter’s initial findings from their research on Poor Law correspondence in the National Archives demonstrate how the culture of writing a letter to make one’s case for support continued throughout the New Poor Law, from c.1834 to 1900.⁹ Hurren also draws our attention to the ways in which paupers pushed back against the New Poor Law in the later nineteenth century, despite attempts to make the system harsher.¹⁰

Whilst people could go to the magistrates for advice as well as practical help, they could also have a letter written by a ‘low’ lawyer on their behalf to be given to someone who had offended them or to someone who owed them money.¹¹ The term ‘Poor Man’s Lawyer’ was in common use well before the nineteenth century, referring to solicitors or barristers who were willing to offer their services to those in need for free or for a reduced rate. Some made this available through cheap publications explaining the law, such as Pearce’s 1755 book, A Poor Man’s Lawyer.¹² However, such publications still required the reader to have a relatively high degree of literacy, and not all cases could be easily resolved in this way. Therefore, those who could provide advice verbally and in person remained important in this area of the legal economy. For example, William Unwin of Sheffield used his profitable conveyancing and estate law work to subsidise work for those who could not afford to pay him.¹³ Others, like the prominent freethinker and MP Charles Bradlaugh, or Robert Thompson, a bankrupt grazier from Wellingborough, were not lawyers but provided advice on legal matters for free when approached.¹⁴ Taking together the criminal and civil areas of law outlined earlier, what historians have shown is the considerable extent to which ‘ordinary’ people were aware of the law in the eighteenth and nineteenth centuries. It was something that could be accessed locally, through the magistrates’ courts, and was also visible to the community, as people could sit in a magistrate’s justicing room and see their work in action. Both the Old and New Poor Laws were malleable, with individuals able to challenge decisions about their entitlement and officials able to exercise discretion.

Over the course of the nineteenth century, the administration of law changed dramatically, with powers being progressively handed over from the Assizes and Quarter Sessions to the magistrates’ courts. Magistrates became more important as the ‘bloody code’ ended and the ‘administrative turn’ in criminal law meant that more people would be dealt with summarily, which was faster and more cost-effective.¹⁵ Likewise, police forces were set up from the late 1820s to provide a professional, dedicated response to the problems of policing in (particularly) urban environments and increasingly took over the responsibility of bringing prosecutions against offenders, reducing the need for victims to do this.¹⁶ From the 1880s, ‘prosecuting authorities’ like the National Society for the Prevention of Cruelty to Children (NSPCC) emerged: charities and agencies that trod the line between voluntary activities and carrying out the work of the state.¹⁷ At the same time, the reforms of the administration of the Poor Laws and the management of public health gradually increased the responsibility of both central and local government and necessarily introduced more legislation with which to comply.¹⁸ As Hurren notes, the 1870s were marked by calls for New Poor Law administration to strictly abide by the 1834 Act, reducing the amount of the supposedly generous and wasteful ‘out-relief’ for the able-bodied poor in favour of stricter proofs of poverty before recourse to the workhouse.¹⁹ The most vulnerable members of society were increasingly being moved out of the Poor Law into specialist provision through such measures as the Metropolitan Poor Act 1867, which attempted to better address the medical and psychological needs of poorer Londoners.²⁰ The mid-nineteenth-century boom in middle-class women’s voluntary action with the needy created a ‘maternalist’ public sphere, in which women could be active beyond the confines of their homes, and opened up a space for professionalised social work. For example, the COS, founded in 1869, aimed to rationalise indiscriminate, duplicated and therefore potentially ineffective voluntary action and almsgiving through careful ‘case work’ with families and coordinating welfare; the National Union of Women Workers (NUWW) was founded in 1895 to support women’s voluntary social work.²¹ Collectively, these changes were part of a shift away from discretionary decision-making in welfare towards a rules-based system driven by ‘experts’ and professionals.

The legal worlds and economies presented by Steedman, Gray, Davis, King and others, in which members of the working classes were well-versed in the law, seem to be at odds with the relative paucity of affordable and reliable legal knowledge in the later nineteenth century, at least as seen by voluntary social workers and their circles. Davis points to a decline in the authority and reach of the police courts in the later nineteenth century, ostensibly due to a shift in attitudes to respectability amongst the capital’s working classes and a desire to avoid the stigma of being ‘criminal’ and ‘undeserving’.²² The division between the ‘deserving’ and ‘undeserving’ poor was part of the operations of the Poor Law and, from the 1870s, also entered the language of welfare and voluntary action through the ‘efficient’ and ‘scientific’ approaches of the COS. Whilst the New Poor Law continued until its abolition in 1948, the Liberal Governments’ introduction of National Insurance in 1911 created a rules-based system for unemployment and sickness and a means-tested old age pension, effectively sealing the shift away from discretion at local level to the enforcement of national rules. The culture of writing letters in support of one’s case or finding an advocate to champion one’s needs was out of step with the new culture, which prioritised rules, case work and expertise in the context of burgeoning legislation. The need to advocate did not go away: it shifted from a petitioning and letter-writing culture with advocates from the local community to one in which lawyers and other professionals were involved in advising on rules and legislation and crafting responses.

The Royal Commission on Divorce

A broad consensus exists amongst historians of legal aid that the primary driver behind the reform of access to financial help with legal cases was the Royal Commission on Divorce of 1909–12.²³ Obtaining a divorce was possible following the Matrimonial Causes Act 1857. However, divorce was only permitted in limited circumstances and could only be dealt with in the High Court. A High Court case was an extremely costly exercise, with deeply personal matters aired in the very public court.²⁴ As Cohen shows, divorce was very diff...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• List of abbreviations
• Introduction
• 1 Making free legal aid and advice the business of state and profession
• 2 The Poor Man’s Lawyer
• 3 The political law
• 4 The trade unions and legal services
• 5 Technology, access and education
• 6 Advisory services in the post-war welfare state
• Conclusion
• Select bibliography
• Index