The House of Commons has debated Government proposals that will end Legal Aid as we know it, one of the great achievements of the post-war settlement and a pillar of our democracy. You might think it surprising that Labour has not made more of a fuss or that the media has ignored this vital issue. Perhaps you are not surprised that it has been debated in the Commons. Here's the shock: the plan was for it not to be debated at all.
The Coalition’s intention was to prevent, for example, Karen Buck, the Member of Parliament for Westminster North, standing up in the House on Thursday to read out a letter from one of her constituents. It said:
“Over many years, our solicitor Alastair Logan worked tirelessly without payment to overturn our wrongful convictions. Without his diligence and painstaking work, it’s no exaggeration that the miscarriage of justice we suffered would never have been put right. Under the government’s terrible proposals, solicitors’ firms such as Alastair’s would disappear to be replaced by a reduced number of large commercial operations with no interest in helping innocent prisoners."
The writer was Anne Maguire, convicted in 1976 of possession of explosives together with her husband, two teenage sons, brother and brother-in-law and a family friend. She was sentenced to 14 years in prison.
The Maguire Seven were, famously, innocent. The Court of Appeal quashed their convictions in 1991.
Maguire's letter carried a chilling warning to Parliament:
"Many more miscarriages of justice will occur if plans to award Legal Aid contracts to the cheapest commercial bidders such as the haulage company Eddie Stobart and to remove the ancient right of accused persons to choose their own lawyer are implemented."
It is hard to convey the scope and gravity of what is planned in England and Wales for Legal Aid, which has helped people who would otherwise be unable to afford legal representation since 1949. The government wants to:
- • Destroy the current model whereby the Ministry of Justice purchases legal services from 1,400 local providers.
- • Issue vast contracts to a small number of businesses offering bulk legal services at the lowest price.
- • Pay a flat fee regardless of plea. (A guilty plea, entailing reduced labour time, promises fatter margins).
- • Impose a 12 month residence test for civil Legal Aid. (Babies in care proceedings would lose legal representation).
- • Pay for legal work on applications for judicial review only in cases where the application succeeds.
Late yesterday the government abandoned one of its more reviled proposals — to deprive defendants of the opportunity to choose a solicitor.
The former Lord Justice of Appeal, Sir Alan Ward, has called the proposals "an emasculation of Legal Aid". More than 100,000 people have signed an epetition opposing them. Citizens Advice, Shelter, the Children's Society, the Refugee Council, Justice, Inquest and Reprieve, and many others have issued grave warnings.
The proposals come bound in a document misleadingly entitled: "Transforming Legal Aid: Delivering a more credible and efficient system".
At stake is nothing less than the rule of law — the core of which is that we are not only bound by but also entitled to the benefits of laws. The rule of law is meaningful only if there is equal access to the courts, a point of power and simplicity made by Geoffrey Bindman on this site in 2008.
The proposed ‘reforms’ close off access to justice. Regardless of that, perhaps because of it, the government allowed only eight weeks' consultation.
One indication of that consultation's competence and integrity came last Friday when, a full 24 days after the closing date, the Ministry of Justice emailed contributors saying: "Your message was deleted without being read". (Yesterday the MoJ insisted it really was reading the submissions and hadn't deleted any of them).
As for debate in Parliament, there would have been none: the government plans to make these changes through secondary legislation.
Thursday's debate happened only because the Backbench Business Committee, which controls a sliver of Parliamentary time, yielded three hours for the purpose.
Of the 32 MPs who spoke, only Jeremy Wright and Jonathan Djanogly (current and former junior justice ministers) spoke in favour. Robert Neill, the Tory Member for Bromley and Chislehurst and a barrister, managed to praise the Lord Chancellor and attack his opponents while nimbly avoiding any hint of committed support.
Tories and Lib Dems alike disowned the proposals, begging the question: who is driving this? Are the Lib Dems part of the government as they claim?
Chris Grayling, who, as Lord Chancellor, has taken an oath to respect the rule of law, did not even bother to turn up. Instead, he spent his day campaigning in a marginal seat.
Justice for the innocent and for victims
Conservative David Davis (Haltemprice & Howden) delivered a bruising critique:
"The consultation was extremely brief and we understand that the Government intend to place contracts in the autumn," he said.
"Frankly, without primary legislation, the likelihood is that this business will be challenged in the courts. We will have more haste and less speed on the delivery of savings."
Davis challenged Grayling's intimation that Legal Aid was "about the protection by silver-tongued lawyers of serial offenders". On the contrary:
"in the Crown courts in contested cases, half are found not guilty. What we are talking about, therefore, is providing justice to the innocent and to victims."
The government should look to the "sheer inefficiency" of the Crown Prosecution Service before bringing its axe down again on Legal Aid, he said.
Davis dismissed the government's plan to mandate the number of providers as "a Soviet proposal".
As for government assurances that a state body would guarantee the quality of providers: "This debate comes barely a week after the Care Quality Commission scandal."
He mentioned just a few of the cases that would be denied justice under the residence test — Binyam Mohamed, Serdar Mohamed, Yunus Rahmatullah (still in Bagram prison), Baha Mousa, Jean Charles de Menezes (mistakenly shot dead on the London tube by special forces acting under the command of the Metropolitan police).
"We are talking about people who were subject to torture in which Britain was complicit; an innocent man beaten to death by British soldiers; people who have been rendered — and still are — to other countries; people who have been handed over to our allies. . . de Menezes, who was shot, although accidentally, by the British Government. All those people would be denied their justice. More important, given that in many of those cases the person is deceased, the British people would not know about the misdemeanours of their own Government."
About cost, Davis said: "Our legal system costs half that of the Swiss and three quarters of the system in the other major European countries, and it delivers better results. Surely we should be proud of that?"
Judicial reviews, he said, "are what keeps British Governments honest".
Former Legal Aid minister David Lammy (Labour, Tottenham) recalled Magna Carta, "where it was said we should not sell justice, deny justice or delay justice to anyone".
Lammy reminded the House that the debate on the suspension of habeas corpus had lasted three days: "we sat through the night, and then the House was able to vote".
On this important issue, he said:
"It is a travesty that the Secretary of State is not present, and that the Government seek to make such a profound change in our country by secondary legislation."
The choice of lawyer was fundamental and essential to democracy, said Lammy.
"That this Government should seek now to say that someone facing criminal charges cannot choose, and therefore have confidence in, the person to be charged with preserving their liberty is a huge exception to the democratic system we have sought to preserve for so long. Of course it will lead to huge miscarriages of justice."
Too thick to pick
Labour's Karl Turner (Hull East) ridiculed Grayling. He said the Lord Chief Justice had exposed his ignorance by remarking: "I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills." Turner went on:
"Not only does he dismiss everyone requiring legal advice as a criminal before they have even been charged or had a trial, but he apparently has the naiveté to think that those who come face to face with the criminal justice system are not capable of judging the competence of their own lawyers. This is the 'too thick to pick' point."
The Ministry of Justice was "taking a hatchet to the British justice system" said Labour's Rosie Cooper. "In Lancashire we would see a 7 per cent reduction in Legal Aid services, which would leave just 14 firms covering a population of over 1 million."
Nia Griffith, the Labour Member for Llanelli, said:
"It takes three and a half hours, for those who know the roads well, to drive from Llanelli to Machynlleth. The idea that only four firms could provide for that vast rural area is complete nonsense. Many local solicitors will be unable to participate and will effectively lose all the business. That means the clients will be unable to access the justice they need, never mind access to specialised areas or in the Welsh language."
Devon and Cornwall, covering 40,000 square miles, would be viewed as one contract, said the Conservative Neil Parish. Totnes Tory Dr Sarah Wollaston asked whether rural Devon "will see a mass driving out of those small businesses in small towns and that people will have to travel large distances to seek justice?"
The Conservative Member for Meon Valley, George Hollingbery, said: "In Derbyshire, Cumbria, Wales, parts of Norfolk, and indeed many other parts of the country, it is very likely that the contracts awarded will cluster in or around a small number of larger towns."
"It is difficult to imagine small local firms being able to survive," said Plaid Cymru's Elfyn Llwyd, who has practiced family and criminal law as a solicitor and barrister:
"With them will go knowledge of the local area, local police, courts and agencies and local access to justice. Instead, we shall have Eddie Stobart, Tesco, G4S, the Co-op and so forth. There is even talk of call centres. The prospect of tendering cases out to 'Stobart Law' or 'Tesco Law' fills me with absolute dread."
Karen Buck warned of advice deserts. "Just this week . . .Birmingham law centre was the first major urban law centre to go under," she said. Paddington law centre, the second oldest in the country, was in jeopardy. Shelter had seen its advice services decimated by cuts. And cuts do not always mean savings: "As we were warned," said Buck, "we are already seeing an increase in the number of litigants in person appearing in court. The Bar and judges warned that it would lead to additional costs."
Seema Malhotra, the Labour Member for Feltham and Heston, warned of the damage that would be done to black and minority ethnic firms. In London, the cuts had already forced the closure of thousands of firms, including a disproportionate number run by lawyers from ethnic minorities.
Bargain basement representation
Children were especially at risk, said Sarah Teather (Liberal Democrat, Brent Central). Children who may be subject to care orders, children with special educational needs, victims of domestic violence, victims of trafficking, asylum cases, people in immigration detention, those facing immediate homelessness, and those with mental health issues were just a few of the very vulnerable groups that might be denied legal aid if they fail to pass the residence test, she said.
Labour's Kate Green (Stretford and Urmston) spoke up for prisoners: "Removing their liberty does not equate with removing all their human and legal rights," she said.
Mothers separated from their babies needed legal representation to make the case to be with them in mother and baby units. Prisoners needed legal representation in matters relating to segregation and categorisation, cases of bullying and discrimination, access to medical treatment, education and rehabilitation programmes.
"Throughout the proposals, the same casual disregard is shown for those who are not considered worthy of justice," said Sheffield's Paul Blomfield (Labour):
"They include survivors of domestic violence—whose position was raised with me by the local medical committee in Sheffield—trafficked people, separated children who fail the residency test, prisoners whose cases cannot be addressed through the complaints system, legitimate asylum seekers wishing to challenge decisions, and those seeking access to judicial review. Bargain basement representation will damage this country’s reputation for justice."
Justice by Tesco, Stobart and G4S
Reminding the House of the "true horror story" that followed the outsourcing of court translation services, Ian Swales, the Liberal Democracy MP for Redcar and a member of the Public Accounts Committee said: "The Ministry’s record on contracting is appalling. How will it be different this time?"
He mocked the MoJ's "touching faith" that many groups of lawyers would come together to bid.
"In fact, it will be largely the same magic circle of outsourcers, who hover like vultures around the award of almost every public contract—with the rumoured addition this time of a supermarket and a haulage company."
G4S’s success in winning work, he said,
"raises the spectre that a person could be arrested, then have G4S legally representing them at the police station; providing the civilian staff processing them there; transporting them to court; representing them there; owning the court in which that person is tried; tagging them if they are on bail; and, if they are found guilty, transporting them to a G4S prison—oh, and it is quite possible that when they are released, G4S will be in charge of their rehabilitation. The potential perverse incentives in that chain are mind-boggling."
Simon Reevell, Conservative member for Dewsbury and a criminal barrister, said he had worked on cases involving the government's conduct in Iraq. He wondered "whether someone working for an organisation that had a contract with the Government would feel as able as I did to take on those issues and seek to expose them in the course of a trial, regardless of consequences, as a member of the independent Bar."
Reevell was among several Conservatives who, as Conservatives, objected to the removal of choice and the attack on small business.
Liberal Democrat Greg Mulholland (Leeds North West) sympathised:
"Let me say from the Liberal Democrat Benches that these changes are not liberal. They undermine the principles of liberal democracy and the justice system that is a key part of it. They threaten the liberal values of justice and fairness that our justice system should be based on. I am therefore saying clearly that as Liberal Democrats we should oppose them."
Labour's Shadow Lord Chief Justice, Sadiq Khan said:
"We do not support Legal Aid being run by the same global corporations that run prisons, probation services, courts and tagging . . . Removing an individual’s liberty is one of the most important powers in the gift of the state. Properly administered Legal Aid means that all individuals charged with a criminal offence have legal representation, not just those who can afford it, and ensures that our country’s precious rule of law applies to everybody."
Lack of legal representation played a part in miscarriages of justice; he mentioned the Birmingham Six, the Guildford Four, the Maguire Seven. Legal Aid gave victims confidence that genuine perpetrators of crime are prosecuted and punished, said Khan. He warned of "perverse incentives that could unbalance the criminal justice system, with representatives being paid the same whether someone pleads guilty or stands trial".
Liberal Democrat Sarah Teather who, with David Lammy, secured the debate, had the last word:
"Liberal democracies cannot afford to get themselves into a position in which they wield power over a citizen without giving them a right to challenge. It would undermine the rule of law if we afford citizens rights without giving them the means to secure them. I hope that the Government will consider these points carefully and come back with some very different proposals, which they will put to a vote in the House."
The Liberal Democrats supported the introduction of secret justice. Must they now support this fresh despotic attack on our justice system? Without them it cannot succeed.