Campaigners at Runnymede, the birthplace of modern democracy, 21 February, 2015
Yesterday Chris Grayling, Britain’s first Lord Chancellor to have no legal training, lost yet another case in court.
This one concerned Judicial Review funding. In order to bring a Judicial Review case, permission from the Court is required. This means that the initial step in any case is an application for permission.
The Government had removed funding for this initial stage to those cases where permission was not granted. The Divisional Court ruled that this removal of funding is unlawful because it is contrary to the purpose of the statutory scheme set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2013.
The latest legal challenge came from public interest lawyers and from charities representing some of the most poorest and most vulnerable people in Britain, including the housing charity Shelter, the Howard League for Penal Reform and Coram Children’s Legal Centre.
They argued that the Government proposals to remove funding for Judicial Review cases where permission had not been granted was unlawful: legal aid providers would be inhibited by financial risk and this would prevent commendable cases being brought.
Yesterday Lord Justice Beatson and Mr Justice Ouseley agreed with them, saying that the non-payment or discretionary payment was “inconsistent with the very obligations that were created by the grant of legal aid”.
It is hard to keep count of the number of times that Grayling has been ruled to have acted unlawfully.
There was his ban on sending books and other essential supplies such as underpants to prisoners. Ruled unlawful. A victory for the Howard League.
The residence test denied legal aid to people who had lived in Britain for less than one year, putting British babies as well as asylum seekers beyond the law’s protection. Ruled unlawful. Another victory for the Public Law Project.
The decisions by the Director of Legal Aid Casework, in each of the six immigration claims, not to grant legal aid under Legal Aid, Sentencing and Punishment of Offenders Act 2012 (section 10) have also been overturned.
The claimants argued that the policy adopted by the Director was wrong in law and too restrictive. Collins J ruled: “In the circumstances, the decision of the director in each of the claims is quashed. I have indicated in individual claims whether I was of the view that legal aid should have been granted … The Lord Chancellor's guidance is in the respects I have indicated in my judgment unlawful” (para 128).
Steve Hynes, LAG's director, said: “This is a very welcome decision. The ruling indicates that the exceptional funding scheme is not providing the human rights safety net that parliament was led to believe it would.”
One Saturday last month (21 February), lawyers, trade unionists, campaigners and civil liberties groups, gathered at the Runnymede, where 800 years ago in June 1215, King John sealed Magna Carta, to defend it legacy — access to justice: “To no one will we sell, to no one deny or delay, right or justice.”
The marchers set out to defend the rule of law, from “a Government that is denying justice to the poor by slashing legal aid, attempting to shield itself from scrutiny by restricting judicial review and pledging to repeal the Human Rights Act”.
Gathered together by Justice Alliance, they marched against the hypocrisy of the government’s own Magna Carta celebration, a three day £1,750-a-ticket “Global Law Summit” at Queen Elizabeth II Conference Centre at Westminster.
Describing itself as “a platform for thought-leadership and cutting-edge debate, and facilitate business networks and access to key industry decision makers”, the Global Law Summit told its paying guests: “Whether you are looking for investment, to invest or wanting to collaborate, networking can be instrumental for your prospects for growth.”
To the journalist Peter Oborne it was “a partisan attempt to hijack one of the great glories of our common history for party political purposes on the eve of a general election.”
The Justice Alliance gathering, calling itself “Not the Global Law Summit”, began a 42 mile Rally for Rights, over three days, from the original birthplace of modern democracy, Runnymede, to Westminster where 300 people rallied outside The Global Law Summit. Leading the march was a giant papier mache Chris Grayling. Protestors chanted: “Magna Carta, not for sale” and “Grayling, Grayling, Grayling, OUT, OUT, OUT!”.
Rhona Friedman, co-founder of Justice Alliance, said at the start of the march: “Legal aid is the fourth pillar of the welfare state and it is being decimated. Magna Carta, the foundation of our civil liberties is being torn up by Justice Secretary Chris Grayling. We have to resist because we will end up in a society where we cannot protect the vulnerable”.
openDemocracy's founder Anthony Barnett said that the rally was for three profound reasons: “The first of these is the act itself. Magna Carta brought arbitrary power to account. It was a deal between the barons and King John. It was an example that when legitimate authority starts to exercise its power in an arbitrary and despotic fashion, it is right and proper to resist and to bring that power to account, to bring it to the table and to force it to secede from those actions. Second it set down three principles of law.”
Barnett (right) concluded his rousing speech: “When we say we are going to defend Magna Carta, from whom? The answer to that is very simple, from today’s barons. Today’s barons are the great corporations, the international corporations – financial and business. They have stolen our political parties, they have stolen our media. Now they want to suborn our legal system and our history. The Global Law Summit is playing with the Magna Carta, to invite people from around the world to a networking event, to allow everybody to chat each other up for corporate tax avoidance. This has to be stopped. We say in defending Magna Carta, 800 years of rule by barons is enough.” (Here's Barnett's account of the day).
Inside the Global Law Summit, Tony Cross QC, who chairs the Criminal Bar Association, unleashed an attack on the government.
“It is no good championing the principle of access to justice, whilst dismantling the mechanisms by which the common man achieves it,” he said. “It is no good claiming ‘To no one will we sell Justice’ if a two tier system of justice evolves where those who can pay get access to justice, and those who cannot, do not.
“It is no good saying we will not delay justice, if our criminal justice system is so chronically underfunded, or overstretched, that delays become endemic. When the courts are underfunded, courts sit empty and trials get delayed. These delays let down those accused of crime, entitled to have their case heard promptly. Just as importantly, they betray victims of crime for whom justice delayed is no justice at all.”
Cross went on: “The first port of call for anyone involved in criminal matters is the trusted high street solicitor. Our government plans to replace those 1,700 firms with just 527 firms. Justice will be provided by conglomerates and supermarkets of lawyers. It will lead to injustice for victims and defendants alike... Those firms, once disappeared, will not be able to provide work for the young lawyer. When they are gone, where will the future judges of tomorrow come from?”
He continued, “Austerity is hitting hard in this land. This English garden is not so rosy. The sort of austerity that we face must be resisted.” Cross predicted that the bar ‘will die out’ and solicitors be replaced by paralegals. You can read his full speech here.
As Tony Cross spoke, the Not the Global Law Summit rallied at Old Palace Yard. Their event focused on people, rather than business. Maxine Peake, star of the television legal drama, Silk, (pictured above) read out some clauses of Magna Carta, to loud applause and cheers.
Matt Foot, co-founder of the Justice Alliance, told the gathering: “The summit is a sham; it is a sick joke... The only way to celebrate the anniversary of Magna Carta is to get rid of Grayling.”
Michelle Bates, the sister of Barry George, who was wrongly convicted of the murder of Jill Dando, said that the Summit was “a complete farce. Compensation for these men would cost a fraction of what the Global Law Summit is costing the Government to host. Mr Grayling, your title is Right Honourable but I see nothing honourable in your deeds.”
Robin Murray, Vice Chairman of Criminal Law Solicitors Association, also spoke: “I do not criticise Mr. Grayling for being a non-lawyer Lord Chancellor,” said. “Just for being a very poor one. But I do criticise Mr Grayling for pimping out our Magna Carta for base commercial reasons at the Global summit when his slash and burn approach to legal aid and Judicial review is leaving ordinary people without the ability to stand up and challenge over mighty corporate Barons and Government power. He is the antithesis of what Magna Carta symbolises.” (speech in full here).
The protestors delivered a letter from the Justice Alliance to the organisers of the Global Law Summit, together with a Magna Carta scroll, carried by foot for 42 miles from Runnymede to Westminster in defence of the legacy of Magna Carta.
The Young Legal Aid Lawyers took part in the action, out on the streets, leafleting in Manchester, Sheffield, Liverpool and Leigh.
Later, at a packed Union Chapel in north London, Matt Foot opened the Justice Alliance comedy night with a passionate speech to lawyers, students, campaigners and journalists. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, he said, legal aid has been decimated. LASPO was the opposite of Magna Carta, it was the “Bullies’ Charter”. The Justice Alliance film was shown, featuring Stephen Fry and Jo Brand, supporting the fight to save Legal Aid.
Comedians including Stephen K Amos, Stewart Lee and Sara Pascoe (pictured left) performed for free in solidarity with the campaign against the government. Grayling’s effigy took centre stage. Paul Hamilton directed one of his poems to it — “Grayling, it is you they should be jailing” — to loud applause.
Shami Chakrabarti, Director of Liberty, who had boycotted the Global Law Summit and returned her invitation, expressed her distaste at the Global Law Summit taking place in a time of austerity and cuts to legal aid.
The government cuts and restrictions are preventing access to justice for all, something Magna Carta stood for – the rule of law, access to justice and a fair trial.
That same day, the High Court ruled against the Law Society, the Criminal Law Solicitors Association and the London Criminal Courts Solicitors Association, and in favour of the Lord Chancellor. The Ministry of Justice propose to press ahead with the two-tier contracts for criminal legal aid, and to dramatically decrease the number of solicitors firms around the country that awarded a duty contract from 1,600 to just 527.
But just a week later, the Court of Appeal granted Leave to overturn the Divisional Court win by the Ministry of Justice. The next hearing is due to take place on 10 March 2015.
Whilst we await the result of that hearing, shadow justice minister Sadiq Khan MP, told the Guardian on Monday: “I’m really worried about the government’s attack on judicial review. When I was a lawyer, I used judicial review to challenge public authorities. When I became a minister, I accepted that judicial review was a pain in the backside: civil servants had to check and double-check. It may have been a nuisance but it’s a very important safeguard.
“So I will reverse all the changes the government has made. It’s important that the executive respects the powers citizens have to hold us to account.”
In the run up to the General Election, Labour say they cannot reverse Tory legal aid cuts. They promise instead to reverse two-tier criminal legal aid, the eligibility test for legal aid for victims of domestic violence, judicial review and freedom of information requests which cover private companies such as G4S and Capita.
The future of justice is far from secure. The 800th anniversary of Magna Carta should focus our minds on defending the Rule of Law.