Open Letter to the Lord Chancellor, Chris Grayling MP, Secretary of State for Justice
I am writing to ask that you revisit your proposals for legal aid, proposals which have generated considerable criticism from across the board - from charities such as Shelter, the Children's Society and the Refugee Council, through to NGOs including Justice, Inquest and Reprieve.
Labour fully supports making those can afford to pay their legal fees do so, and clawing back costs from wealthy criminals. Legal aid should be reserved for those most in need.
One of the most important powers of the state is removing an individual's liberty. Anyone arrested on suspicion of committing a crime or facing trial would not want to accept second rate legal representation imposed upon them. Some of your proposals may lead to this happening.
Many experts warn that your proposals will lead to a 'sausage factory' approach to legal aid provision. I hope you appreciate that guilty pleas entail considerably less work for a legal representative than not guilty pleas. If so, you hopefully also understand that your plan to pay the same fee regardless could lead to the innocent pressured to admit guilt, leading to more miscarriages of justice. This would also mean those who are in fact guilty still being at liberty in the community. This would be disastrous for public confidence in our criminal justice system.
Choice of legal representation would seem to chime with wider government thinking, yet you plan to remove it in legal aid. In your comments that are now widely referred to as the "too thick to pick" remarks you said defendants don't need a choice of legal representation. I do not agree. Nor do I believe it is proper for the state, as the prosecutor, to also assign a defendant's legal representative because of the conflict of interest. I suspect you wouldn't be happy having a special adviser imposed on you, or having no choice in who provides your external legal advice - both of which are also paid for by taxpayers.
I am pleased that the Attorney General, Dominic Grieve QC MP, recognises the serious adverse consequences of these proposals. I would urge that you seek his counsel as a matter of urgency, as Dominic supported Labour in 2009 when we realised that price competitive tendering (which was a precursor to your current plans) was not feasible.
Your changes to civil legal aid and judicial review have been presented as harmless savings that won't impact on anyone. But if your residency test proposals had been in place, a number of high profile cases would never have been successful. I am sure you realise that your proposals would exclude the Afghani interpreters and the Ghurkas from legal aid and that the families of Jean Charles de Menezes and Jimmy Mubenga would also have been ineligible.
Similarly, on judicial review, your Government believes their bad decision making should be insulated from challenges from its own citizens. This explicit policy of weakening this crucial constitutional check and balance will lead to a rebalancing of power in favour of ministers away from the citizen. You have supported this by misleadingly referring to an explosion in judicial reviews as justification for the change, neatly ignoring that when immigration is taken out of the equation (as it will be from now on as a result of changes in the Laspo Act) there's been little increase in judicial reviews in the past decade.
Judicial review will only receive legal aid if they get to the permission stage, as granted by a judge. But you must accept that cases not proceeding this far are still meritorious, as resolutions in favour of the client are often found just by starting down the road of judicial review. Most cases are settled between issue and before the permission hearing.
And if legal aid is only paid after a successful permission hearing you are creating a perverse incentive for lawyers to fight a case rather than settling. This will increase costs, especially when the respondent in judicial reviews is also funded by taxpayers. You will close down an important avenue used by the homeless, the sick and the disabled. I am unclear whether any robust assessment has been made of the inevitable displacement of costs elsewhere in the public sector that almost certainly exceed the £1million you claim to be saving.
In short, your changes to legal aid are half-baked. You have prioritised generating favourable headlines by choosing to attack fat cat lawyers and unworthy groups as cover for dismantling of our legal aid system. As a result it appears you could not care less about the many worthy causes and vulnerable people affected by your plans.
Anyone who has experience of working in our courts knows how much inefficiency there is in the system. A root and branch review of our courts and prosecutorial services could reap substantial savings, sufficient enough to protect legal aid from any further cuts. I know that many of the NGOs, legal organisations and senior judiciary would be happy to work with you to deliver on this. I would too.
As Lord Chancellor, you have taken an oath to respect the rule of law. I look forward to you putting this into action and revisiting immediately these proposals.
Rt. Hon Sadiq Khan MP
Shadow Secretary of State for Justice and Shadow Lord Chancellor
This letter was first published by Huffington Post.