“The degree of civilisation in a society is revealed by the way it treats its prisoners” is a quote for which history claims many authors. Dostoyevsky, Churchill and Pope John Paul II have each been paired with it perhaps saying something of the power contained in the idea. Regardless, it is not a sentiment shared by our current Lord Chancellor – the first non-lawyer in the post since 1672 – Chris Grayling, who on 8 April announced a new package of cuts to legal aid.
Grayling does not believe prisoners should have access to free legal advice concerning matters such as treatment, sentencing, disciplinary action and parole board reviews. Instead, he tells us, the prisoner can raise a complaint through an internal procedure. Never mind that many prisoners will be burdened with much of the health, educational and social problems associated with criminality which will make it quite impossible for them to put their own case effectively. How prisoners are treated is fundamental to their prison existence and to restrict their ability to ensure that treatment is lawful begins to look like a form of punishment in itself.
In criminal legal aid, the consultation forwards plans for a model of price competitive tendering. Bids will be invited below a fixed ceiling for batches of work around the country. It is a system in which only warehouse law firms will exist and high street firms will either die or be absorbed by large corporations intent on delivering legal services cheaply for maximum profit. The future will be one in which suspects are apprehended by G4S investigators, transported by G4S security, detained by G4S officers and imprisoned in G4S jails – at each stage represented by G4S lawyers.
With price competition will come the removal of the right to the solicitor of your choice. Representation will be allocated by rota and it will be made difficult to change solicitor should you wish to for any reason. The idea that quality can survive the casual vandalism of these proposals is absurd. The model of turbo price competition used in some US states tells us that.
Fees in criminal legal aid is a favourite target of justice secretaries and Grayling is no exception. Yet, there has been no increase in barristers’ fees since the 1990s. While a handful of criminal QCs do earn significant sums the rest of us do not. It may be that such fees should be discussed but not, as the justice secretary does, in a bid to undermine the entire system. As a trainee barrister I have a guaranteed income of £12,000 during my first year. We do not ask for sympathy, merely accuracy.
On the civil side the planned fee reductions mean many lawyers’ practices will simply no longer be viable. So those who specialise in housing, homelessness, actions against the police and judicial review – all crucial mechanisms for ensuring state accountability – will disappear. Their successors will be the warehouse G4S model or non-specialist charitable organisations staffed by well-intentioned but resource-poor lawyers. There will be no equality of arms in the courtroom.
As a result of previous reforms, from 1 April this year a raft of areas no longer attract free legal advice. Employment cases, non-asylum immigration cases, consumer rights and welfare benefits were all removed from scope. In the case of the latter it is estimated that 40% of challenges before the benefits tribunal succeed. Money would be saved by the Department of Work and Pensions making the correct decisions in the first place. There has been no opportunity to yet assess the impact of these changes but that has not deterred Grayling from unleashing a new round of cuts.
There is to be a residency test for those claiming civil legal aid. Applicants must be in the country lawfully to be able to apply and for those who are, an additional requirement of 12 months’ residence is imposed. This is the sort of divisive approach to immigration we have come to expect from the Conservative side of the coalition. Children of people here unlawfully will be left without the protection that would otherwise see them housed and looked after. Foreign students and people here on a temporary visas will be unable to challenge state wrongdoing.
If money is all that Chris Grayling understands then he should understand this: these proposals will cost more in terms of the miscarriages of justice, social harm, and disruption to the court service which will result, than the £200 million he seeks to save.
Russell Fraser is a pupil barrister and joint secretary of the Haldane Society of Socialist Lawyers. He has written this in a personal capacity.
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