Another New Iniquity
Stephen Sedley, in his piece on the British constitution, mentions some of the proposals put forward by the Ministry of Justice in its consultation ‘Transforming Legal Aid’ (LRB, 12 September). The main part of the consultation dealt with criminal defence and proposed that clients have no choice of solicitor; that the number of firms holding legal aid contracts be reduced from 1600 to 400; and that price competitive tendering be introduced, capped at 17.5 per cent below current rates.
The Law Society, of which I was president between July 2012 and July this year, took up the Lord Chancellor Chris Grayling’s challenge to come up with a better scheme. He wanted a system sustainable in the medium term and able to survive the cuts he insisted had to be made. We wanted a system that would preserve client choice and keep in business the many dedicated solicitors still willing to do this poorly paid work (the average legal aid lawyer is paid less than the average nurse, teacher or police officer). And we succeeded, to a large extent. The MoJ’s response to the consultation was published on 5 September, and a radically different scheme is now proposed: client choice is back in, price competitive tendering has gone, and any firm that reaches defined quality standards will get a contract.
It’s not all good: there is still going to be competition for contracts to do duty solicitor work, which in some areas is the main source of new clients, and rates will still be cut, but in two stages rather than all at once. Some of the other proposals, including the residence test, the restriction of access to judicial review and the denial of legal aid to prisoners, are driven by ideology rather than the need to save money, so evidence that they may cost more than the status quo hasn’t had much effect.
The residence test, whereby legal aid is available only to those who are entitled to be in the UK and have had an unbroken period of residence here of at least 12 months (with total breaks of no more than 30 days), not only raises profound ethical issues but has the potential to bring what remains of civil legal aid to its knees. People applying for legal aid will have to produce documentary evidence that they meet the residence test; lawyers will not be paid for work done on cases without it. We don’t yet know what evidence will be acceptable – probably a British passport, but lots of people don’t have those. School records won’t help (all those holidays when you could be anywhere), nor will student visas, rent books, birth certificates or bank statements. Even evidence of receipt of benefits won’t be conclusive. Solicitors will not be able to take on cases without the necessary evidence, as they would quickly go bust. So vulnerable and desperate people, those that the government recognises are most in need of legal help, will be shut out of the system.
The judicial review proposals have been watered down, but still conflate failing to get permission with having a weak case not deserving of legal aid. Judicial review is one of the very few ways ordinary people can hold government to account, and it is disturbing that this proposal remains, in the face of condemnation from, among many others, the government’s own senior lawyers.
The ‘modest’ savings made by denying prisoners legal aid will be greatly exceeded by the cost of keeping them in prison longer. More than 13,500 prisoners are serving indeterminate sentences; in other words, they can be released only if the Parole Board finds that it is no longer necessary for the protection of the public that they remain in prison. In reaching its decisions, the Parole Board relies on evidence that the prisoner has been rehabilitated and that he or she has sensible release plans, including a suitable place to stay. There is a shortage of suitable rehabilitation work in prisons and appropriate resettlement facilities are limited. Legal representation can help people get the services they need to improve their prospects of release, which saves on the human and economic cost of prisoners getting stuck inside for years.
Parliament’s Joint Committee on Human Rights is investigating the human rights implications of these proposals and is due to report before the end of the year. It has asked the Lord Chancellor to delay implementing the changes until after it reports, but so far he has refused.
Stephen Sedley suggests that the government’s explanation for its proposals for the reform of legal aid, in particular as a means of limiting access to judicial review, are disingenuous since the purported objective – the saving of cost – could be met in other ways. This is undoubtedly true. However, in an otherwise superb analysis, the alternative he posits, namely charging litigants to litigate, is nothing short of gob-smacking.
Sedley cites the fees presently payable for ordinary private law claims in the civil courts and says that subject to the payment of these relatively low fees ‘major litigants get a court and a judge free of charge for as long as their litigation lasts.’ Free of charge? This is justice, not a bag of potatoes! Many of the private law claims to which these fees relate will concern the very state acts or failures (including for breaches of the most fundamental rights) that will commonly be the subject of claims in judicial review, a procedure he rightly regards as critical. For all litigants (major or minor, however that is determined) ‘access to justice remains, in principle at least, a pillar of our constitutional law,’ as Sedley himself says. (Just like voting which, so far, comes free.) Why then if we find ourselves in the position of an unfortunate litigant (and one will always be unfortunate in that eventuality) must we bear the cost of justice, with the state washing its hands of this costly business?
Sedley’s comments are made at a time when, for those concerned about the obstacles that lie in the path of ordinary people who need to access the courts, the future looks very bleak. The government has recently introduced fees as a requirement for issuing proceedings in employment tribunals which hitherto, and since their inception, were free to all. This means that workers (employers can defend claims without paying a fee) will now have to pay to vindicate the most basic of rights (like an entitlement to the minimum wage or the right not to be subject to race discrimination). The government has also recently consulted on the level of fees that should be payable for issuing proceedings (including for judicial review), and what remissions should be available to litigants (i.e. how poor you need to be to get a discount) in the ordinary civil courts. The government’s stated objective is to make the courts and tribunals self-financing or as near to it as possible; that is, to treat them like any other commodity. Whatever steps are taken to ensure that the justice system is self-financing (a fee to commence proceedings, a fee to continue, or a mixture of both as is the case now) won’t affect the rich. Those with money will continue to be able to access justice – much like any other luxury good. It will be of no avail to an ordinary litigant that the costs will be added to the case (as indeed they already are) so that if she wins she will get them back. It is the up-front and potential costs of a case that deter any person in receipt of anything but the highest of incomes, for whom cost will make no difference, or the very lowest of incomes, for whom fee remission or legal aid might be available.
In 2010 Lord Neuberger, now president of the Supreme Court, described the branding of the civil justice system as merely a ‘self-financing service which the state offers, indeed which the state almost happens to offer by historical accident’, as ‘a profound and dangerous constitutional mistake’. He went on to say that ‘such a policy, and the mistaken premise on which it is based, is now too deeply embedded to be undone.’ This is something Sedley appears to have accepted. As a constitutional fundamentalist when it comes to access to justice at least, and most important as one whose views will be bandied about by all and sundry, surely Stephen Sedley must repent at once.
Stephen Sedley writes: If Karon Monaghan will reread what I wrote, she will see that it was not a call to put litigants on some kind of taxi-meter for using the courts. I was pointing out that if government was serious about cost-cutting rather than about simply disabling its antagonists, its own philosophy would take it down this road – a road which, as Monaghan points out, it has already embarked on in other ways. If it sets her mind at rest, I have been opposed from the start to the milking of the court system by the Treasury. The reason I mentioned ‘appropriate limitations’ is that recoupment of court overheads (as against lawyers’ fees) could quite readily be marketed by restricting it to excessive and unjustified use of the courts. That is something which has been known to happen in commercial litigation, but (possibly for that reason) it is evidently not something the present minister of justice is exercised about.
Not Just about the Cash
What Susan Watkins misses in her account of the state of the European Union is that for German and French intellectuals Europe remains a political project first and an economic one second (LRB, 29 August). In the UK, we have just two considerations: are there material benefits for us and, if so, are they worth the loss of direct sovereignty that membership of the EU entails? The stakes are much higher on the other side of the Channel. This is why Watkins cannot understand how Ulrich Beck can be so trenchant in his critique of what has gone wrong and yet end up defending the autocratic measures which have impoverished the southern states at the behest of ‘Merkiavelli’. But as Beck explains, ‘Europe is an alliance of former world cultures and great powers, which are bent on finding an escape route from their own warlike past.’ Like Jürgen Habermas and Daniel Cohn-Bendit, Beck believes it is because of the EU that Europeans no longer fight wars against each other. The project of the single currency went so badly wrong because it was an economic answer to a political question. But it was also a political imperative to save it.
The cAMP Molecule
Gavin Francis forgets his biochemistry when he writes that ‘adrenaline locks into lumpy molecules called G proteins that span the cell membrane’ (LRB, 29 August). Nor do the G proteins, as Francis claims, convert ATP to cAMP. Adrenaline binds to alpha or beta receptors that span the cell membrane. It is these receptors that are linked to G proteins, which reside on the underside of the membrane. The G proteins in turn activate various subcellular targets, including an enzyme (adenylyl cyclase) that converts ATP to the messenger molecule cAMP. The multi-component process is essential for fine control and further amplification of the adrenaline signal; it also allows cells to integrate the signal with those from other hormones and neurotransmitters.
Andrew O’Hagan (LRB, 12 September) quotes Ian Hamilton telling an interviewer who refused a drink on the grounds that he didn’t ‘like the taste’ that ‘None of us likes it.’ Kingsley Amis, whom O’Hagan mentions in passing, was more precise in The Anti-Death League (1966):
‘He only drinks to be sociable, which is no use to anybody.’
‘It’s the taste of the beastly stuff which is such a snag,’ said Naidu.
‘No, it’s a blessing. We’d all be dead if it were palatable.’