Jeremy Beecham on the ideological agenda that is really driving the Coalition’s legal aid policies
Although Lord McNally, the Justice Minister in the Lords, has constantly justified the Coalition’s policies by referring to the need to cut public expenditure, some of us have long suspected an ulterior motive.
Those suspicions have been explicitly confirmed by the Lord Chancellor in recent evidence to the Justice Select Committee, when Mr Grayling said the proposal to reduce funding for legal aid to prisoners was “ideological” rather than driven by financial considerations. Given the minimal amount the proposals were supposed to save this is not surprising. A fourfold outweighing of the savings engendered by denying legal aid to prisoners seeking redress by the cost, and a fivefold increased cost of complaints to the Prisons and Probation Ombudsman, ensure the economic case falls away completely.
It is not however, the only area in which Grayling’s ideological proclivities are shaping policy. The residence test for legal assistance, like its proposed equivalent in the NHS, is another blast on the Tory political dogwhistle likely to cost more than it saves. Are these people to be treated, in Kipling’s words, as “lesser breeds without the law”? Albeit in this case at our behest not theirs.
In the crucially important area of judicial review the savings are estimated at all of £1m for each of the two proposed restrictions; i.e. withholding legal aid before permission is granted to proceed and ‘borderline’ cases, even though there may be a public interest element. Here the government’s use of figures would do credit to a Libor-manipulating banker, and rely on the fact that over half of legally aided applications for judicial review end before permission is granted. But as the Bingham Centre for the Rule of Law has pointed out, a much higher percentage of cases are abandoned or lost at subsequent stages by non-legally aided claimants. Indeed, many are withdrawn because a defendant body, perhaps a local authority in a planning matter, recognises and corrects its mistake.
Over and over again, eminent judges, including the President of the Supreme Court, the Master of the Rolls and Lord Woolf have stressed the importance of judicial review as a means of holding the executive and public bodies to account. It is a cornerstone of our judicial system.
The cost of legal aid is falling, even before taking into account the inclusion of VAT – something that of course goes to Treasury coffers (at least when HMRC collects it). Moreover, as the National Audit Office has pointed out, the cost of our criminal justice system is not at all out of line with other European countries. At 0.33% of government expenditure it is equal to the average. And Ministers have yet to explain how they will achieve £220m savings when their estimate for 2016/17 is £118m.
We are now in the middle of a consultation on proposed changes to criminal legal aid. This remains highly contentious, despite the concession that defendants may now choose their lawyer rather than have one appointed – as in the Moscow magistrates’ court of old. But how this will work in the world of the proposed tendering process, not to mention the ludicrous proposition that fees for guilty and not guilty pleas should be the same, is still to be explained.
In the meantime, hundreds of thousands of people and their dependants face a ‘No Entry’ sign where once there was access to justice.
Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords
Published 11th July 2013