Legal aid changes will allow abuses of power by public authorities against the most vulnerable

Last week justice secretary Chris Grayling withdrew his proposal to deny those accused in the criminal courts and reliant on legal aid the right to choose who will represent them.

Nicola Braganza and Amanda Weston are barristers who practise in discrimination, human rights and public law at Tooks Chambers, London

Last week justice secretary Chris Grayling withdrew his proposal to deny those accused in the criminal courts and reliant on legal aid the right to choose who will represent them.

This was one of numerous draconian measures set out in Grayling’s recent consultation paper entitled Transforming Legal Aid, more aptly described as ‘Destroying Legal Aid’.

Grayling’s U-turn, together with the Ministry of Justice’s announcement on 3 July to publish a second short consultation in September, comes following unprecedented and strongly united opposition across all parts of the legal profession and from those advising vulnerable groups alike.

Even the attorney-general and treasury counsel, barristers instructed by the government, came out condemning the changes as inimical to a functioning justice system, as did the president of the Supreme Court Lord Neuberger.

This still leaves the other changes: proposals which will fundamentally undermine our basic and constitutional rights of access to justice for all and to equality for all before the law.

In addition to mounting an attack on our society and social justice, the proposals are unlawful, costly and unworkable.

Grayling promises “a more credible and efficient system” yet he intends to create a two tier justice system for rich and poor, a system without credibility or efficiency which will deny immigrants and a highly vulnerable social underclass access to justice.

The Ministerial Foreword sets out that “Access to justice should not be determined by your ability to pay” – the proposals will secure the contrary.

The consequences are predictable. Courts will see a greater number of claimants acting in person. There will be a shift in managing cases to the Judiciary, requiring significantly greater input, time and, public expense to the taxpayer.

The proposals target the poor and the vulnerable, the mentally ill and children, groups who need access to justice the most. Of most concern is that these proposals will insulate the government from challenges to its illegal acts – and the Ministry of Justice knows it.

The UN International Covenant on Civil and Political Rights (articles 3, 14 and 26), the European Convention on Human Rights (articles 13, 6 and 14), and the EU Charter of Fundamental Rights (articles 47 and 21) all provide for the right to legal representation without discrimination.

This is a right fundamental to a fair, just and humane democratic society. Grayling’s proposals breach these international instruments.

In particular, the new ‘residence test’ requires individuals show that they have lawfully lived in the UK for over 12 months. As a consequence, homeless children, victims of human trafficking, domestic workers and immigrants suffering domestic violence will be denied legal aid and access to the courts.

Grayling has accepted that the case of babies under 12 months was the ‘one area’ that the government will look at again – but maintains his stance for all other children.

The proposals are discriminatory applying to non-British nationals without adequate justification.

A further measure which will load the dice in favour of the state is that those acting for claimants in judicial review proceedings will not be paid for work done in claims which fail at the permission stage whilst lawyers acting for public authorities, also funded by public money, will be.

The obvious danger in this is that it will provide an incentive for the state to fight cases it should be conceding.

Publicly funded lawyers are already struggling to survive the effects of the Legal Aid Sentencing and Punishment of Offenders Act 2012, and market forces will simply push them into other areas of law or cause them to act for fewer clients who can afford to pay privately.

This will further widen the gap of power between the individual and the state.

These proposals will allow abuses of power by public authorities against the most vulnerable sections of our society to go unchallenged. That will affect us all.

In the words of Lord Neuberger:

“It is fundamental to the rule of law that every citizen, perhaps above all the poor, the vulnerable, the disadvantaged, should be able to go to court to vindicate their rights or to defend themselves, whether to challenge excesses of Executive power, to protect private rights, to be compensated for wrongs, to secure family rights, or to defend themselves if prosecuted.”

This is what our so-called Ministry of Justice seems intent on destroying.

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