Chris Grayling (centre). The first Lord Chancellor with no legal training.
Will the Coalition government's proposals for reform of Legal Aid obstruct access to justice? That was the matter under scrutiny at the Joint Committee on Human Rights last Tuesday, when Justice Minister Chris Grayling was confronted with his own words of reassurance.
Committee chairman Hywel Francis, quoted Grayling at Grayling:
“The legal aid reforms do not involve any fundamental right to access to court, but whether or not a person should receive legal aid funding," the justice minister had asserted.
Francis, the Labour MP for Aberavon, then quoted Lord Hope, who was until recently deputy president of the UK Supreme Court. Legal advice, according to Hope was “one of the fundamental rights enjoyed by every citizen under common law and it is inherent and fundamental to democratic and civilised society”.
Hywel Francis asked Grayling, who bears the title Lord Chancellor, and has taken an oath to uphold the rule of law: did he see the contradiction?
Grayling, a public relations man by profession, the first Lord Chancellor without any legal training, saw no contradiction.
"Whilst it is essential in a fair and free modern society that everyone accused of a crime has the right to be represented and can afford to have access to the courts," said Grayling, "it is unrealistic to provide legal aid support to everybody.”
Francis threw Oscar Wilde — about knowing "the price of everything and the value of nothing” — at the Justice Minister. Surely, if the government's proposals come to pass, only people with means will have access to justice?
To which Grayling replied:
“We currently provide legal aid to everyone who cannot afford representation, but now we need to limit what we can provide. We cannot provide to those people with enough disposable income. People have to be responsible for themselves. We simply do not have the money to be able to spend it on what we want to.”
Guardian of the rule of law
Baroness Helena KennedyThe barrister and Labour Peer Helena Kennedy asked Grayling whether he felt he was alert to the tension between his political agenda and his duty, as Lord Chancellor, to protect the rule of law.
“I do not believe any proposals would undermine the principle that my office represents. It is my role to make sure we have an effective justice system in this country. This does not mean that those who can afford to pay for legal representation, should pay for it themselves."
He went on: “If the changes go through in their current form, per capita we will still have the most expensive legal aid system in the world. My role as Lord Chancellor involves making sure that the system provides proper justice. These reforms will not undermine that. I do not believe that contradiction is against the rule of law.”
Grayling took a barrage of questions on his proposals to remove legal aid for prison law. He insisted:
“I defend the legal aid system. I would never scrap it. I regard it important that a prisoner has access to proper legal advice. However, complaints are a matter for the prison, not the justice system."
He said: “If it is a matter of internal mistreatment, we have a Prisoner Ombudsman. I am sure that if there is a case of blatant abuse, then I am sure there will be a queue of lawyers who will do it as no-win, no-fee."
A woman who was sexually abused at Yarl's Wood Detention Centre would not have access to legal advice under Grayling’s proposals.
Grayling contended that matters of maltreatment should be dealt with internally, and not in the court system.
"These proposals will mean that the spend on prison law will fall from £24million per year, to £20m year, so this is not eliminating [legal advice in] this area,” he said.
The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights. Grayling posed what he called an interesting question: To what extent does Article 6 require Legal Aid to be available?
He answered himself: “it is essential that people who are charged with a criminal offence, who risk losing their liberty, should have the right to a proper defence, and it is the duty of the state to ensure that happens.”
Grayling wants to impose a 12 month residency test for eligibility for civil legal aid. Baroness Kennedy argued that his powers permitted him only to widen the scope of eligibility, not restrict it.
"The legal advice is very clear," Grayling insisted. "I have the power to do it."
He went on: “The rationale is straight forward. Unless an acute need, such as vulnerability, people should not be able to come to this country and access legal aid straight away. The exception to this rule would include asylum seekers, trafficking and domestic violence related cases, however, the overall principle is you need to be established, in civil cases, to use our system. You should make a financial contribution to this country by paying taxes in order for you to be able to take something back.”
When further questioned, Grayling stated in relation to those who lack mental capacity: “The reality is we cannot offer services to those who arrive in the country, who have not made a contribution, even if they have a learning disability.”
On 15 November Justice Alliance, a coalition of more than thirty organizations, delivered a letter to Nick Clegg. The letter welcomed the Liberal Democrat conference vote demanding that the changes to legal aid should be stayed.
The signatories, who included the Howard League for Penal Reform, Liberty, the Refugee Council and Coram Children's Legal Centre, said: "The conference vote recognises that in all aspects these proposals have serious implications for access to justice and fair trial rights."
They wrote: "poor and unfair decisions of the state will go unchallenged as never before; asylum seekers and immigrants, such as those in Yarl's Wood Detention Centre, will have no remedy for abuse; and quality criminal representation will be diminished further given the heavily reduced funding" that is proposed.
They called on the deputy Prime Minister to ensure that the "changes to legal aid . . .which now have no government mandate, are stayed."
Simon Hughes MP, who received the letter on Clegg's behalf, is a member of the Joint Committee on Human Rights. He asked Grayling if he would hold back the implementation of his proposals until after the Committee had published its report on their potential impact.
Grayling refused. He said: “I published these proposals in April, it has been some time. We have left plenty of time for Parliament to have its say.”