Last week I spent an enjoyable few hours at a protest in central London, outside the Ministry of Justice. The chants were along the lines of ‘what do we want: JUSTICE and EQUALITY; when do we want it: NOW’. There were quite a lot of us – and we were all lawyers. (My picture was tweeted with a retired court of appeal judge in the background.) What brought us out onto the streets, and what has been gathering momentum among not only lawyers but the public as well, has been outrage at what the government has already done to legal aid, and what more it intends to do if it gets its way.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has already brought to an end the availability of legal aid across a whole range of areas of law that have direct relevance to the poor. Under cover of generalised claims about opportunistic litigation, the goal has clearly been to remove the capacity for challenge to the implementation (whether lawless or not) of the coalition’s various attacks on benefits. The same legislation also withdrew state support from foreign nationals in prison who are threatened with deportation, as many are – regardless of how long they had been here and how British they are in fact. The idea behind this change was to prevent resistance to removal by showing an infringement of the right to respect for private life in the Human Rights Act (a matter on which government now also intends to legislate separately). In both these cases, the government appears close to accepting that their goal is to prevent meritorious cases getting to court, on the ground that the laws that make them meritorious (human rights legislation; equality law; the common law of procedural fairness) are not laws they like. They have been tempted to remove the litigants rather than the laws, hoping there’ll be less fuss.
It does seem, though, that Mr Grayling and his team at Justice may have overreached themselves. In new proposals they are now also proposing the denial of choice and effective representation to all those accused of crimes except the well-off. This will deliberately leave most of those arrested in the hands of the lowest bidder for the job of guarding their interest, who will have been given monopolies so as to ensure that the economies of scale work for them. Not only satirical BBC programmes but even the Daily Mail has castigated this – in particular the keenness of Eddie Stobart (‘cavalier and slapdash’ as their legal department chief has been judicially described) to become the public defender the public are compelled to accept. The point is to drive good legal aid firms – already operating on a shoe string – out of business and as a result make impossible to raise (because unnoticed or uneconomic) the kinds of important legal points that protect suspects and ensure the rule of law.
The same tactics are also evident in the new civil legal aid changes being proposed: refusing legal aid to everyone who does not meet a residence test; removing legal aid for those who complain of mistreatment in prison; denying funding for test cases (whose prospects are by definition uncertain); and cutting rates for legal advice and representation even further in the barely-disguised hope that well-informed solicitors’ firms will go out of business. If all this were to go through, access to justice would return to being the mirage it once was for all but the very wealthy before the establishment of legal aid by the post war Labour government.
The judges, the government’s own lawyers and the whole legal profession has joined as one to prevent it. Emily Thornberry the Shadow Attorney General has challenged her government counterpart Dominic Grieve to explain how the proposals fit with the public interest which it is his primary function to guard. Margaret Thatcher’s long serving Lord Chancellor Lord Mackay of Clashfern has told The Mail on Sunday that the proposed tenders for legal aid contracts ‘should not be based on cost alone’, and that he is concerned that the measures ‘do not contain robust means of ensuring standards of quality’, adding: ‘It’s very difficult to make cuts and to preserve the quality of justice at the same time.’ Writing in The Daily Telegraph on 29 May no fewer than 90 QCs asserted that the ‘cumulative effect of these proposals will seriously undermine the rule of law, and Britain’s global reputation for justice. … In practice, these changes will immunise Government and other public authorities from effective legal challenge. Abuses by UK agents and officials overseas that hitherto have been subject to the scrutiny of British courts will now, in practice attract impunity.’ Moreover the QCs say the changes would be counter-productive: ‘People whose lives are affected by the unlawful action of public bodies will have no option but to try to represent themselves. Effective representation will be one-sided: the government will continue to pay for, and be represented by specialist lawyers.’
Of course the judges will try to help – for a while. As will the government lawyers – for a while. But times will change. What was shocking – a claimant in person floundering to explain why what has happened to them is unlawful as well as wrong – will become first normal and then irritating. All that time wasted! Why don’t they just get on with it? Without specialist law firms, younger QCs will emerge, invariably from the world of commercially paid work, with no feel for or memory of the equalities of the past. The public interest bar will be a thing of charity and training, not a core advocacy activity for all.
We would have effective impunity within a system of notional accountability, a pseudo rule-of-law allowing government to congratulate itself on the legality of what it does in the sure knowledge that the life-blood of true accountability – state-funded litigation – had been drained from the system.
Peter Oborne (Daily Telegraph) says of the Cameron government that it has ‘launched a series of very carefully prepared assaults on exactly the British institutions they should, as Conservatives, be defending.’ Will Mr Grayling – the first lord chancellor not to be a lawyer for hundreds of years – listen, or will his fearlessness grow into the sort of stubbornness in the face of facts that ends political careers? Perhaps it already has.
Conor Gearty is Professor of Human Rights Law at LSE and also Director of its Institute of Public Affairs. He is a practicing barrister at Matrix Chambers.
Suggested citation: C. Gearty ‘Legal Aid Changes’ UK Const. L. Blog (10th June 2013) (available at http://ukconstitutionallaw.org)