Legal aid and ideology: the new basis for Government reform? – Angela Patrick
4 July 2013
In a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”. It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning. For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid.
Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aid consultation paper. JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.
The removal of prison complaints from the scope of legal aid, the introduction of a residence test for eligibility and the proposal to limit access to legal aid for judicial review will all shield public authorities from legitimate challenge, including in serious cases which engage the protection of individual rights, including, for example, challenges to family separation, removal of access to services to support independent living for people with disabilities and access to support for victims of domestic violence.
The restructure of the provision of criminal legal aid on the basis of price competitive tendering (“PCT”) has dominated public debate. This is understandable, in light of the significant impact this proposal could have on access to justice for people accused of crime and the credibility of our criminal justice system. From “too thick to pick” to the assumption that all accused are criminals, the Ministry of Justice, and the Lord Chancellor have not acquitted themselves well on this issue.
PCT again dominated the Lord Chancellor’s evidence to MPs. Reporting has ranged widely over the Lord Chancellor’s recognition that plans to remove any client choice within the system are unsustainable. The press and the twitter-sphere are dissecting Mr Grayling’s dismissal of the concerns raised by members of the Bar and others, in favour of the “constructive” engagement of the Law Society.
However, although only a few minutes of the MPs time were devoted to civil justice, it garnered some of the most revealing highlights into the Government’s thinking on reform. JUSTICE and others have highlighted that none of the proposed civil legal aid reforms appear designed to save money. Instead they are intended first to shield Government and public agencies from judicial oversight and second, to cut certain groups of vulnerable, and unpopular, people from eligibility for public legal assistance. When pressed on most areas of reform relating to civil legal aid, Mr Grayling explained that differences on legal aid in these areas are based on “ideological differences” or fundamental “beliefs” about who should be eligible for public funding.
Taking three examples from the civil reforms proposed – the introduction of a residence test for eligibility, limiting access to legal aid for prisoners and the restriction of access for judicial review – this ideological basis for reform should create immediate cause for concern for us all.
The residence test
In the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), Parliament carved out careful provision for legal aid to be available for vulnerable people and people subject to significant State restriction, including detention, to protect their rights.
The controversy over those cuts to scope was well rehearsed. JUSTICE strongly opposes the proposal to introduce a blanket ban on eligibility for legal aid based on residence. This discriminatory bar stops one small step short of an arbitrary exclusion from justice of non-nationals within the jurisdiction. The Lord Chancellor’s responses to questions on the justification for the introduction of the residence test were based firmly on “belief” and ideology. Certain people by virtue of their characteristics – regardless of the connection of their case with the jurisdiction or with action by the Government – should not, in the Government’s view, be eligible for public support to ensure access to judicial determination of their rights.
Taking only one issue – the treatment of individuals in immigration detention, where individuals’ right to liberty is constrained by the State – it is difficult to understand how the justification for the removal of legal aid can be sustainable on purely ideological grounds. Many other individuals will have good cases – women subject to domestic violence, human trafficking victims, alleged victims of torture – yet none will find the protection of our courts open to them unless they can find advice pro-bono. As more charities and pro-bono advice centres go bust – like the Birmingham Law Centre this week – this avenue is increasingly likely to be barred.
The exclusion of these cases may yet lead the Government back to costly litigation before our domestic courts, as challenges are brought not only on human rights grounds, but – if the measures are implemented in delegated legislation as the Ministry intends – on the grounds that the removal of legal aid from this category of persons is incompatible with LASPO and the intentions of Parliament.
Access to legal advice for prisoners
The Government proposes to remove all access to legal aid for prisoners, except for issues relating to sentencing. Mr Grayling reiterated that – for ideological reasons – prisoners should, in the Government’s view be excluded from court or access to legal aid to challenge any decision about their treatment.
Many – including JUSTICE – have pointed out how this will undermine prisoners’ fundamental rights within prison, including the right to liberty. Cutting all challenges, including separation of mothers and baby units or the treatment of prisoners with mental or physical health problems will create major risks that individual prisoners, held in a closed environment by the State, will be subject to treatment falling well short of international standards.
The Lord Chancellor refused to engage with this issue when pressed by the Select Committee. Instead, Mr Grayling suggested that the internal complaints mechanism is adequate. This neglects the view of Her Majesty’s Inspector of Prisons and Probation that this system is not working and, more importantly, that under existing legal aid rules, legal aid is only available to prisoners for problems which cannot be resolved using the alternative mechanisms provided.
This lack of rigour fundamentally undermines not only the credibility of the Lord Chancellor’s ideological reasoning but also his financial rationale. Any ideology worth its salt should be capable of explanation and justification. The case on austerity cracks when we consider that most commentators familiar with prison law – including the Parole Board – have said that the removal of legal aid will create significant on-costs as individuals will be kept in prison for longer than necessary, proportionate or justified. The costs of keeping one individual in prison for even a few months longer than needed is measured in tens of thousands of pounds. Applied across the prison estate, this will run into millions.
Restricting access to judicial review
The Lord Chancellor relied on his fundamental belief that the “taxpayer should not pick up the Bill for weak cases”. He spoke of lawyers being responsible for turning judicial review into a “public relations” exercise “going round and round and round” as a “delaying tactic”. The evidence provided by the Lord Chancellor on this issue, during evidence and in Transforming Legal Aid is scant and undermined by any proper analysis of the statistics (see JUSTICE consultation response, paras 106-108).
JUSTICE is concerned that the proposal to restrict access to legal aid for judicial review beyond the significant restrictions in LASPO (and elsewhere) will limit the ability to access advice on public law only to those with the means to pay privately, making publicly funded work unviable.
The changes appear designed to insulate public decision-makers from effective judicial oversight. The determination that the risk of public law litigation should be met by lawyers representing vulnerable people without other means to challenge life-changing decisions shows a profound misunderstanding of administrative law in practice.
This misunderstanding was clearly apparent during the Lord Chancellor’s evidence yesterday. The taxpayer is not required to bankroll all cases no matter how weak. Even the most junior civil servant or legal practitioner knows that judicial review is already subject to an unusual double-check for viability.
First, all claims for legal aid are subject to a merits test conducted by the Legal Aid Agency. Weak cases do not make the grade. In addition, the scope of legal aid for judicial review claims was narrowly and carefully circumscribed by Parliament in LASPO. Second, the judge acts as gatekeeper. Anyone bringing a claim (or defending one) knows that no unarguable claim will get past the first sniff of judicial involvement. The judge’s role on permission is now bolstered in relation to cases adjudged to be “totally without merit” with those being rejected on the papers.
However, it is the setting of this judicial permission stage as the appropriate hinge for the risks associated with costs that illustrates the inherent flaws in the Government proposals. The implication that cases withdrawn before permission are futile is undermined by the acceptance in the Consultation Paper that, of those cases which proceed to hearing and do not secure permission, many yet result in a concrete benefit to the claimant.
For example, in many cases, the possibility of judicial review may influence a public authority to reverse a decision or to change its practice without resorting to proceedings. It is this front-loading which means some of the strongest claims will never get near permission. Creating a deterrent for solicitors to take the strongest cases will fundamentally undermine the nature of judicial review, either forcing specialist and expert funders out of the market or encouraging a game of chicken between lawyers and public authorities which effectively encourages a rush to court.
Mr Grayling hinted that all would be well in these cases as costs could be settled inter partes. This is a red herring. Settlement is routinely made on the basis of no order as to costs, in the client’s best interests to reach an early solution. When costs have been sought, on current practice, the courts are reluctant to make orders against public authorities who have reached a constructive solution. The Government may be hedging its bets on the courts changing their practice. This won’t save public money, it just shifts a relatively small sum from the legal aid budget to lay a more significant bill on another agency or departmental one. This lays bare the ideological basis for the proposed changes to judicial review. Not austerity, but the belief that Government should not be subject to judicial scrutiny if it can be avoided.
Exceptional funding to the rescue?
The Lord Chancellor referred to the possibility under LASPO (Section 10) for individuals to apply for exceptional funding. MPs should not be easily misled. The provision for exceptional funding in LASPO came into force in April and is, as yet, largely untested. The Ministry estimated 8,000 claims in a year. There have been a few hundred. Only two are known to have been granted.
It is also impossible to get exceptional funding without legal support. So, to get an exceptionally funded lawyer, you need a lawyer willing to act pro-bono. The form is 14 pages long and requires a merits assessment of your claim. No provision is made for assessments to be made in emergency cases and no special provision is made for especially vulnerable groups, such as those with learning difficulties or dementia.
These practical considerations aside, the Lord Chancellor appears to misunderstand the scope of Section 10, LASPO when he suggests it will be open to persons subject to the residence test. Exceptional funding is offered for claims out of scope. Persons excluded under the residence test would not necessarily be out of scope; they would be excluded from legal aid by virtue of their characteristics, ineligible regardless of the nature of their claim, not out of scope.
By making this debate and these particular reforms about the “ology”, the Lord Chancellor concedes that the proposed changes to civil legal aid are not only unjustifiable but indefensible. It is regrettable that in these proposals for reform – and those in last year’s judicial review consultation – the Ministry of Justice has wholly neglected to consider the core constitutional functions of either legal aid or judicial review. The only reference to constitutional considerations made by the Committee yesterday was rejected off-hand by Mr Grayling – no constitutional problem arose as he was not planning to “get rid of judicial review”.
In the criminal justice system, independent, accessible and effective access to publicly funded legal assistance protects the right of us all to be presumed innocent until proved guilty and the underlying effectiveness of our criminal courts. In the civil justice system, legal aid is needed to ensure that in often complex and sensitive cases, those without independent means are capable of accessing our courts to protect their individual rights against third parties and the State. Judicial review – particularly in our society, formed on the basis of an unwritten constitution – provides an important constitutional tool to help ensure that our public authorities and central Government act within the law.
It is all the more regrettable that it is the Lord Chancellor who appears to have overlooked these important factors, in light of his statutory duties under the Constitutional Reform Act 2005 to protect the rule of law, the independence of the judiciary and the effectiveness of our courts (JUSTICE Consultation Response, para 11).
Mr Grayling’s announcement that there will be a second paper published for consultation on PCT in the Autumn, following representations by the Law Society, is welcome. We can hope that this second consultation period will also allow time for reflection on the reform of civil legal aid. This debate has so far been unfairly caricatured by Government as a pay negotiation based on “hysterical” trade-union like behaviour by lawyers.
Somewhere along the line, the importance of legal aid to our constitutional framework and to the credibility of our justice system – and its importance to real people with real problems – has been lost. If – during this slightly extended, but still speedy period of consultation – the Lord Chancellor is looking for a principled ideology on which to base reform, he could do no better than to start with the constitutional principles set out in his own statutory duties. Taking the rule of law as his own personal “ology” – including the principle that all Government must be according to the law – Mr Grayling may yet see the error of his ways.
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