Friday 7 March 2014

JUSTICE DENIED - a Day of Protest

Some other views:

Barrister blogger - Grayling's plans for the legal profession are profoundly wrong.  Why I support the strike
Owen Bowcott - The Guardian 7th March 2014 - Legal Aid cuts: lawyers v the Crown
London Evening Standard - 7th March - Rosamund Urwin: Lawyers caught in the Tory cost-cut trap 
Legal Voice - 7th March - 'Grayling Day' Protest: A day of shame for the Lord Chancellor
Steve Cornforth blog - 7th March - Striking at the heart of injustice
Garden Court Chambers - 7th March - The disturbing conflict of interest at the heart of British justice - 'The current practice of reserving the post of Lord Chancellor for an MP who is Secretary of State for Justice is constitutionally unsound.' 

My view:

For many, Magna Carta - signed by a reluctant King John on the fields of Runnymede - is one of the founding principles of our law - "We will sell to no man, we will not deny or defer to any man either Justice or Right."  I believe that the present government is denying justice to many.

A very substantial representation of the legal profession are to protest about the government’s latest plans to decimate legal aid.  The Ministry of Justice  has published its dismal response to the latest consultation - (scroll down to link)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) both removed civil legal aid from many areas of law and, in other areas such as family law, severely restricted legal aid. 

During the previous Labour government, legal aid in criminal cases in the Magistrates’ Courts became subject to the double-whammy of an interests of justice test and a means test.  This served to reduce legal representation in hundreds of cases each year.  Means testing for legal aid in the Crown Court duly followed and, from 27th January this year, a restrictive scheme exists for defendant's costs orders (Law Society).

The coalition government (2010-present) weighed in heavily on civil legal aid with Kenneth Clarke (Secretary of State for Justice and Lord Chancellor) enthusiastically becoming one of the very first Ministers to agree stringent financial cuts with HM Treasury.  No desire to preserve the best of the legal system was apparent.  Rather, the very opposite was more evident.  Clarke continued and accelerated the programme of court closures inherited from his predecessor (Jack Straw).  Clarke also steered LASPO through Parliament with the result that civil legal aid was axed in areas of law of crucial importance to many.  Clarke’s time at “Justice” is also noteworthy for his introduction of “Closed Material Procedure” in certain civil cases in which governmental interests are in issue.

Clarke (a lawyer) was succeeded by Chris Grayling (a non-lawyer).  Grayling, encouraged wholeheartedly by his senior civil servants, has been particularly keen to wield the financial hatchet on criminal legal aid and certain other areas such as representation for prisoners.  This led to two consultations in 2013 to early 2014 and responses followed – (details via the link above).

In any society which claims to be democratic, the government would be keen to maintain an independent and vibrant legal profession.  It is an obvious point that the senior lawyers and judges of the future have to start somewhere and it is often with legally aided cases that younger lawyers cut their teeth.  They gain in experience and gradually take on more complex work.  Cuts to legal aid will undoubtedly impact adversely on the future of the judiciary and its quality. 

It is a democratic essential that the citizen who is arrested or charged with an offence or who is involved in a difficult dispute is able to obtain the services of a lawyer to advise and represent him.  At stake can be the person’s liberty, reputation, livelihood.  The denial of legal aid is an obscenity.  The average citizen knows little or nothing of the savagery of the cut backs to legal aid already implemented as well as those yet to come.

The legal profession – particularly the Bar – suffers from an elitist image which Ministers, aided by elements in the popular media, have ruthlessly and disgracefully exploited.  Yes, the legal profession has its high earners but, for that matter, so does politics, medicine, dentistry, veterinary medicine and many other professions and occupations.  High earners at the Bar include most Queen’s Counsel – (though the rank does not always lead on to fame and fortune) – and some experienced “juniors” as they are known even though they may have many years of experience.  Such barristers are able to take on the most complex and difficult cases and, it should be noted, are often briefed by government and public authorities  when their interests are in issue.  Complex and difficult cases and appeals in the Court of Appeal and Supreme Court require highly experienced and able lawyers and their involvement can save hours of court time and costs because of their ability to crystallise difficult issues and present them succinctly.

The vast majority of lawyers are emphatically NOT in the fat cat league.  Many junior barristers will earn only, at best, a modest income.  The same is true of most employed solicitors on the high street though the solicitor’s branch of the profession alsio has very high earners.  They are mainly found in the larger "city" firms engaged in commercial law.

What then is the protest truly about?  Is it lawyer’s income (under attack from legal aid fee reductions) or is it the challenges to the citizen’s ability to obtain representation before courts and tribunals?  The true answer is BOTH.  Adequate representation cannot be obtained without a remuneration level making it worthwhile for the lawyer to practice in legally aided work.  Without representation, the citizen is highly likely to suffer serious loss of rights or injustice.

Millions (if not billions) of pounds have been poured into banking (which continues to pay out largely unmerited and immense bonuses), defence (though this is not without restructuring and cutbacks), overseas aid and other matters.  No sensible lawyer has ever argued that justice should be immune from review and savings but what has been (and is to be) imposed is savage and attacks the fundamental democratic right of access to justice for the average citizen of modest means.  The tragedy is compounded by the fact that most people do not realise this is happening. 

For these reasons, the protest is to be applauded.  I fear however that an isolated protest  is unlikely to be adequate to force a serious rethink within government.  Such a rethink may only come about if the criminal justice system is brought to a standstill for as long as it takes to secure a better policy.  The alternative, and much more preferable, alternative is for Parliament to wake up and do what it is truly there for: protection of the hard fought rights of the British people.


1 comment:

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