A fundamental shift in the relationship between the government and the governed is taking place: by restricting access to the law, the state is handing itself an alarming immunity from legal scrutiny. There are several aspects to this: the partial or total withdrawal of state financial support for people who lack the means to pay for legal advice and representation; and for those who can pay, a restriction on which kinds of decision by public bodies can be challenged. In the area in which I work, criminal law, defendants who receive legal aid will lose the right to choose who represents them in court. Meanwhile, the misleadingly named Justice and Security Act, passed earlier this year, enables the government to conceal evidence from litigants by using national security as a trump card. All this is accompanied by an unbending hostility to human rights law, tainted by its association with Europe, even though this legislation at least offers the weak the possibility of redress for abuses by public authorities.
Consistent with the neoliberal principles that underpin so many of its policies, the government does not believe that it has a responsibility to fund litigation through legal aid. Last year, as minister of justice, Kenneth Clarke said: ‘What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.’ The 2012 Legal Aid, Sentencing and Punishment of Offenders Act ended the use of legal aid in several areas of civil law that have particular relevance to the poorer sections of the population: employment, housing, family law, social welfare and medical negligence. The government believed, or claimed it believed, that the availability of free or subsidised legal advice and representation had resulted in speculative and meritless litigation. Just as a tiny minority of benefit claimants abuse the system, there may be a few reckless souls, egged on by lawyers, who play legal roulette with chips supplied by the taxpayer. But for every one of them, there are scores of others who need legal advice because they are in a crisis. The government isn’t interested in evidence, however. It just doesn’t think it’s the business of the state to fund litigation. If people can’t pay for access to the law, that’s their problem. The government wants to treat legal services as a commodity, priced and distributed by the market, with the barest safety net for the truly indigent in a small subset of cases.
One of the changes in last year’s legislation removed legal aid for foreign nationals in prison in this country who want to appeal against deportation decisions (those sentenced to a minimum of 12 months in prison are liable to automatic deportation, whatever the offence). Many foreign nationals have lived in the UK since childhood, have put down roots, married, had children and lost all contact with their country of origin – except their passports. They can avoid deportation if it’s proved it would be a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights – a protection which is about to be further restricted by legislation announced in last month’s Queen’s Speech. Without legal aid, which is not generous even now, and without a lawyer, these prisoners have no chance to show that their case may have merit.
The restrictions on legal aid are already leading to an increase in the number of people representing themselves in courts and tribunals. This has caused the Bar Council to publish A Guide to Representing Yourself in Court. It opens unpromisingly:
The law can be very complicated. This guide explains things as clearly and as briefly as possible, but will only give you an overview of what you need to do if you have a civil law legal problem. This means we have had to miss bits out – bits that are likely to affect what the law would say about your own situation. So please do not rely on any of the examples used in this guide.
The Guide’s seventy glossy pages can be compressed into the old lawyer’s adage that anyone who represents himself has a fool for a client.
But a growing number of people have no choice: if they want to pursue certain types of case they now have to represent themselves. The self-represented take up far more court time. If one side has lawyers and the other doesn’t, the judge may intervene to even things up, but has to be careful not to show undue favour, which would give the other side a justified ground of appeal – and more court time would be taken up deciding the case all over again. A civil case, let’s say something complex to do with a tenancy agreement, may well take twice as long in court with a self-represented litigant. The savings on lawyers’ already modest legal aid fees hardly count for much when the cost of running a single courtroom at the Old Bailey is estimated at £10,000 a day. Someone who ends up being sent to prison because his case hasn’t been presented properly will take money out of the prison budget – also the responsibility of the Ministry of Justice. Overall, the denial of legal aid seems likely to increase rather than decrease costs. The conclusion must be that this legislation has nothing to do with saving money.
In December, Clarke’s successor, Chris Grayling, launched a consultation paper on the reform of judicial review – the process which allows judges to review the effect on complainants of decisions made by an arm of the state (though not by Parliament). He allowed only six weeks for responses, most of which were highly critical. Following this rather skimpy consultation exercise, Grayling said that the reforms were intended to ‘target the weak, frivolous and unmeritorious cases which congest the courts and cause delays’. Judges, of course, have ample powers to do this already, as they had pointed out in their response to the consultation paper. Only about 5 per cent of cases result in a judgment for the claimant, but a great many cases are settled out of court, because the public body concerned recognises that the challenge has merit.
The consultation paper resorted to anecdotal evidence, which it did not quote, and was clearly a product of a political desire to make it even harder to challenge government decisions in immigration and asylum cases, as well as in planning cases. ‘Government is also keen to ensure that judicial review is a process which requires claims to be brought and resolved swiftly, reducing the uncertainty for public authorities which can have an impact on the delivery and cost of public services.’ Notice that the imperative here is to reduce ‘uncertainty for public authorities’ rather than to ensure that claimants have a reasonable opportunity to put their case. Instead of a maximum of three months, judicial review claims must now be brought within thirty days of the action complained of – creating a perverse incentive to lodge precautionary claims that might not have been necessary were there more time for pre-action negotiation. The consultation paper and the politicians behind it do not acknowledge that the growth of judicial review in immigration cases may well be linked to the Byzantine and constantly changing immigration laws passed by successive governments, and by poor decisions made by the Home Office and the UK Border Agency. As for planning cases, the desire is to reduce the legal obstacles for developers by making it harder for those adversely affected by their plans to oppose them.
In April, Grayling launched another consultation: Transforming Legal Aid: Delivering a More Credible and Efficient System. This proposes further changes, including restricting the use of legal aid in judicial review cases, and ending the use of legal aid in litigation brought by people who have been in the UK for less than a year. The Ministry of Justice also wants to introduce ‘price competition into the criminal legal aid market’. There are currently about 1600 solicitors’ firms in England and Wales accredited by the government to do legal aid work. That number will drop to 400, each of which will be assigned a geographical area; big firms will be allowed to bid for multiple contracts. Contracts will be awarded to the lowest bidder, with the ceiling for bids set at 17.5 per cent below current rates. The winners will be allocated all the work, or a guaranteed proportion of it, in their area. A client will not be able to choose who represents him, but Grayling doesn’t think this matters since ‘I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills.’ Fees will be paid per case (at the moment lawyers are paid according to how long they spend on a particular case), making it financially unviable to spend the necessary time to prepare more complicated cases properly. The sensible thing would be to increase turnover by advising a rapid guilty plea.
Grayling thinks barristers deliberately spin out cases to maximise their daily payment. This isn’t true, but like his predecessor he needs no evidence: his remedy for this non-existent problem is to cut the rate paid to a barrister after three days of trial, in some cases down to £14 a day. He also thinks that ‘criminals’ don’t need to be represented by QCs, which suggests an astonishing lack of understanding of the presumption of innocence. The most difficult and complicated cases, where that presumption is most important, call for representation by the most experienced advocates. The government also proposes to deny legal aid to prisoners who want to challenge aspects of their treatment. Grayling thinks they can get acceptable redress by appearing without a lawyer at internal prison complaints boards. The government’s ambition is merely to achieve ‘adequate’ standards of representation. There is no desire to make them excellent, or even good. In his foreword to the consultation document Grayling claims that legal aid ‘has lost much of its credibility with the public’ during the last decade. But there is no evidence that the system lacks credibility, if by that it’s meant that it’s not doing what it’s supposed to do.
So who loses and who wins? The losers are people who can’t afford lawyers: foreigners, prisoners, people accused of crime. Hitting them is politically cost-free or even beneficial to the government. Hitting lawyers certainly is. Who wins? In general, the state, because it frees itself from many challenges to its authority and decisions; in particular, developers and building firms. Maybe also big firms like G4S, Serco, Capita and – incredibly – the haulage firm Eddie Stobart, all of which have expressed interest in bidding for legal aid contracts, leaving the firms that understand legal aid to collapse.