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Parliament resists government attack on British justice (again)

MPs decry government proposals, in England and Wales, to destroy Legal Aid, one of the great achievements of the post-war settlement and a pillar of our democracy. See also: A victory for British justice, but so much more to do

Gemma Blythe
5 September 2013

The first question on many lips about yesterday's Parliamentary debate on Legal Aid was: "Would the Lord Chancellor appear?" Chris Grayling, the Conservative MP who bears that title, notoriously ducked out of the previous debate on proposals that would in England and Wales demolish Legal Aid as we know it. Would Grayling, who has taken an oath to respect the rule of law, bother to turn up this time?

Here was his response to one lawyer who put the question:

“Thank you for your message. I am a little surprised that you didn’t seek to check this out a bit more closely before writing . . . The debate on Wednesday is in Westminster Hall, with no vote, of a kind which would not routinely have the involvement of a Secretary of State. I have in fact answered numerous questions in the House about Legal Aid in the last few months and will no doubt continue to do so. The debate on Wednesday will be handled, as normal, by one of my ministerial team.
Yours sincerely
Chris Grayling
Lord Chancellor and Secretary of State for Justice”

The Coalition government had intended that no debate at all should take place on extraordinary proposals that would:

  • Destroy the current model whereby the Ministry of Justice purchases legal services from 1,400 local providers, and issue contracts to just 400 firms throughout the country
  • Issue contracts to the lowest price — Tesco, G4S and Stobart are poised to move in
  • Pay a flat fee regardless of plea
  • Pay for legal work on applications for judicial review only in cases where the application succeeds

But the Backbench Business Committee, which controls a thin slice of Parliamentary time, enabled the first debate on 27 June 2013 ahead of the recess. (That debate was reported here on OurKingdom). The second debate was held yesterday in Westminster Hall where, as the Lord Chancellor correctly pointed out, debates have no substantive motion for decision, or vote.

Labour have agreed to use one of their opposition days in the Commons Chamber to bring forward a motion against the changes, which will be voted on, in the near future. (According to a leak reported in the Law Society Gazette, there may be fresh news of a second consultation today).

Karl Turner, MP for Kingston upon Hull East (Labour) opened yesterday's debate with a 40 minute speech demolishing the Ministry of Justice’s proposals.

He said that constituents were increasingly turning to MPs to help with complex areas of law, because they simply cannot afford to consult lawyers.

“We could signpost to the Citizens Advice Bureau, but due to budget cuts, charities and local centres have been slashed," Turner said.

"These are now closed or buckling under pressure of reduced resources and vastly increased referrals. The Transforming Legal Aid consultation paper goes beyond this and will destroy the Criminal Justice System."

He went on:

“There are many aspects of these proposals that I do not agree with, but denying access to justice goes against everything I represent. We live in a civilised society. The reforms will mean that justice stops at the prison gates if the government plans go ahead. Denying prisoners Legal Aid will save just £4 million – it would be flippant to say it is peanuts, but savings at what cost?”

Turner conceded that The Law Society had come up with a much better alternative, which maintains choice, but he maintained that price competitive tendering

"will damage the criminal justice system. The market will be dominated by the usual suspects – Serco, Capita, G4S. It will be taken over by less qualified people providing a less qualified service. Quantity will trump quality each and every time."

He concluded: “The reality is that people will suffer and I hope that the government listen”. He hoped the idea of price competitive tendering (PCT) would be buried.

Labour MP for Tottenham, David Lammy, attacked the Government’s proposals, saying “This is why when we put PCT in school meals, we ended up with turkey twizzlers. This is why when we put PCT to cleaning the NHS, we ended up with MRSA. Let us remain committed to quality in this system."

Lammy asked whether price competitive tendering should always lead to a reduction in client choice, and answered that putting the criminal justice system out to tender and guaranteeing a share of work, would, by necessity, limit choice.

He said the banks should fund fraud cases — “this would half the Legal Aid savings”. About Judicial Review, he said:

“This affects us all. If the state comes to me to take my kids away, I would be seeking JR. If the state wants to demolish my house to make way for HR2, [High Speed Rail 2]  I would be seeking JR. If the state is unwilling to provide a care home for my mother, I would be seeking JR.”

Labour MP for Hammersmith, Andy Slaughter, gave thanks to the speakers, of whom not one had supported the government’s proposals. He put the following questions to the Minister:

  • Given that choice is back in, what is the saving now?
  • What effect is the second consultation going to have on the timetable of implementation?
  • What will the new tendering regime look like?
  • Is anything going to be done on the issue of specialism?
  • What are the additional costs of litigants in person?
  • What the government are doing here is hardwiring inefficiencies and injustices into the criminal system?

Slaughter mentioned this article (a worthy read) by Stephen Sedley (The Rt. Hon. Lord Justice Sedley) — and said, “The rule of law, like everything else, would be negotiable.”

The Minster, Jeremy Wright, had the last word. He said that those who will not be entitled to Legal Aid will be those with a disposable income of £37,500 or above, which he said is generous.

He agreed that the government needed to continue to look at Very High Cost Cases (VHCC) and court inefficiencies. However, those areas on their own would not do the job of making necessary savings, he said.

There is a tradition in English law that you are innocent until proven guilty. The Minister stated that the government will not change that presumption. He said that people with the means to pay should not have access to tax payers' funding if they find themselves guilty. If they find themselves innocent then a refund will be considered.

On the question of whether price competitive tendering would still be supported, the Minister said: "This is a crucial question – should we deal with Legal Aid reform in this way?"

Access to justice, and the right to a fair trial, are absolutely fundamental to the Rule of Law and the democratic society we live in today. The Rule of Law is a notion, a belief, that no one is above the law, and everyone is equal to the law regardless of social, economic or political status.

Without Legal Aid, the criminal justice system would divide into a two-tier system, which would split those who can afford to pay for legal representation and those who cannot – which would completely undermine the Rule of Law. This country’s most poor and vulnerable will be at a much greater risk of miscarriage of justice.

Without Legal Aid, we cannot call ourselves a fair and just society. 

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