Comment: How the government’s reforms to legal aid and judicial reviews are disenfranchising the poorest and will destroy confidence in the judiciary

Michael Higgs is a Law student at the University of Sheffield

One of the basic tenets of any democratic society is ensuring that all classes have access to the legislature, executive and the judiciary. However, thanks to the government’s reforms to our legal services, some of the most vulnerable in our society face a disenfranchisement from the judiciary.

It is important to note that the judiciary is still currently a blatantly unrepresentative body, given the slow-changing nature of appointments and reform, and it is almost as poor as the Cabinet in this regard. The Judicial Appointments report by the Select Committee on the Constitution found that, in 2011, of 3,694 judges only 22.3% were women and 5.1% were people from BAME backgrounds (Black, Asian and minority ethnic). As one report emphasises :

 “The judiciary of England and Wales has historically reflected the demographic composition of the Bar, drawing its membership from well-educated middle-class white male barristers.”

It is important to note this against the background of the government’s reform to legal service provisions.

The best way to increase access and confidence in the short-term is through allowing the people, including those most vulnerable, to have their perspectives and queries expressed through the judiciary, regardless of its make-up, and to challenge the government on its decisions where they feel injustice.

Isolated from decisions, such as the West Coast Mainline deal and cuts to welfare that are so critically flawed, there is little in the way of redress unless through the courts.

The government has realised that the judiciary is getting in the way of reforms on this basis. You only have to look to the start of the coalition at the cancellation of the Building Schools for the Future scheme. Local councils took the Education Minister, Michael Gove, to court for cancelling the projects without consulting the councils affected or for analysing the impact it would have on equality. This resulted in his decision being declared illegal and the courts ordering him to rethink it.

As for the West Coast Mainline deal, the massive miscalculations made would have been unlikely to come to light if it was not for the judicial review brought about by Virgin. The value of the judicial review should have been much more appreciated – especially given its service towards ensuring a more reasoned decision at a time when rail fares are soaring. However, soon after the exposure of this fiasco, David Cameron made a speech to the CBI criticising the access to judicial reviews:

“We urgently need to get a grip on this. So here’s what we’re going to do: reduce the time limit when people can bring cases, charge more for reviews so people think twice about time-wasting, and instead of giving hopeless cases up to four bites of the cherry to appeal, we will halve that to two.”

What message was this meant to send to the people? Simple: if you’re a big business we will not obstruct you, even if your work happens to be to the detriment of those petty, less fortunate people. By increasing the cost of judicial reviews we will ensure that only those who can afford an opinion will be the ones who get one and by reducing the time limit to make it less likely that they’ll be successful. Of course, Cameron wouldn’t want councils and equal access to education getting in the way of ‘progress’ and reform.

It is important to recognise that the cases of judicial review mentioned were brought by large bodies, the many councils and Virgin respectively, but it does reflect the value of judicial reviews in serving members of the public – whether it is school children or passengers detrimentally affected by the government’s poorly calculated decisions.

Many councils were already restricted by the deadline and could not bring about a judicial review; with the deadline shortened in the future it will make them less likely to appeal in time. The increased costs are likely to deter bodies such as councils from pressing ahead with them, but the most severely impacted will be individuals, with the majority of judicial reviews being on issues of immigration and asylum decisions (8,649 out of 11,200 judicial reviews).

This also comes at a time when brazen attacks on legal support are occurring. The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 seeks to restrict legal aid further. This is already on top of cuts from central and local government to the provision of legal aid (£350m from 31st of March 2013). The LASPO Act excludes from legal aid support for individuals with issues such as debt, welfare benefits, clinical negligence, educational cases, private family law, asylum support and immigration (also including family reunion cases involving refugees) and much more. You can see why it was in the government’s interests to have passed this act. It has effectively washed its hands of peoples’ concerns. Which of the cabinet’s millionaires could you see going to court over any one of those issues?

It is a shame that the population has a lesser understanding of this act than the welfare and NHS reforms; the principles of legal aid are as important as healthcare and welfare support and it is instrumental to retaining and defending other principles of the welfare state from the government. However, the greatest principle under threat is that a judiciary is going to be more effective at representing and protecting those who can afford it whilst becoming less effective at helping the most vulnerable. Coupled with its unrepresentative form, the damage in the trust and credibility of the system is likely to be long-term and severe.

You’ll hear more about the reforms and its impact via the Low Commission in the coming year. Sadly, it is too late to do much to protect against these cuts and many will suffer – from the government’s estimates alone, 623,000 will lose out on legal advice.

Like this article? Sign up to Left Foot Forward's weekday email for the latest progressive news and comment - and support campaigning journalism by making a donation today.