Put simply, the legal profession will make it an issue. It is often said in a rather world weary way that public do not care about legal aid until the lack of it directly affects them. I have not entirely been convinced about that bearing in mind the general public, who when polled, by ComRes, said: ‘More than two-thirds (68%) of those questioned agreed with the proposition that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”.’
But where I believe the issue will receive greater focus is in connection with the hottest issue of the hour, namely Europe. The Lord Chancellor Chris Grayling cannot have it both ways. He cloaks his attack on human rights and threatens to withdraw from the British (and Winston Churchill inspired) European Convention on Human Rights, under a right wing populist anti-European sentiment. This he imagines will outflank UKIP and also shore up his right wing credentials with the Conservative party preparing for a potential post Cameron leadership election.
However I believe Mr. Grayling is playing politics with human rights and legal aid and has walked himself into a trap. His dishonest comparison of the spend on legal aid in the UK with Europe without question labels him as someone who wishes to overturn our internationally respected adversarial justice system . He wants to replace it with a directly state employed judge and civil service-led inquisitorial system and not our independent defence lawyers. Dishonest because the National Audit Office report from 2012 found that the UK was exactly average in comparison with worldwide spends on the criminal justice system (0.33% of GDP) – here.
If you want a lower spend on the defence then, like squeezing a balloon at one end, the cost will expand at the other with inefficient judicial bureaucrats paying lip service to ‘inquiring’ into the defence.
Most people in the UK would choose a fiercely independent defence lawyer in private practice over a directly employed state employee. That is our history and our tradition. The fact that the UK spend is average compared to the rest of Europe suggests a clear intent to switch expenditure to state employees. The cost will not reduce at all but will be relocated.
So why is this to be an election issue?
Chris Grayling cannot have it both ways. He cannot attack a European system such as the ECHR as part of a clear Europhobic and opportunistic stance for political advantage and get away with clearly implying we should sacrifice legal aid for a Euro-style inquisitorial system. So much for Magna Carta, trial ‘by your peers’ and the democratic people’s justice we have in the UK – juries and lay benches – which is now to be replaced by trial by Euro-style legal bureaucrats to administer the ensuing chaos in the courts where defence lawyers formally kept the system working.
This view is supported in a wide range of opinion. We are not alone. This is not just the view of a Guardian reading liberal elite. There is strong and growing support for our system and legal aid across the whole political system. The description ‘the right wing leaning think tank’ is almost always attached to The Adam Smith Institute and to be fair no one could accuse them of being a bunch of ‘lefties’. All the more significant then that Grayling’s approach should come under attack from that quarter in their very recent publication ‘Yes, we do have a large Legal Aid bill; and so we should’! In that piece there are so many good points but this stands out: ‘It’s not so much that defence in a criminal trial costs more in our system: it’s that those costs are differently apportioned.’ If a so called ‘right wing leaning think tank’ gets it, why doesn’t Mr Grayling?
It is about time the ‘right’ and everyone woke up to the threat to our rightly revered approach to Justice by Grayling’s de facto embrace of a foreign Euro inquisitorial system. If Europeans are content with their system, that is fine. I am not being Eurosceptic or nationalistic. It is simply that an alien system that should not by the backdoor be foisted upon the UK without the electorate having a say. The profession should help people come to an informed view of this threat to our way of life.
It is about time we stopped apologising for expenditure on legal aid and embraced it as a necessary part of our UK culture and democracy. As ‘Adam Smith’ say:
‘As we rather like that adversarial system, where it is up to the State to prove, beyond reasonable doubt, its claims, then that Legal Aid bill is something that we’ll just have to suck up.’
I do not disapprove of Mr Grayling as Lord Chancellor because he is the first in centuries not to be lawyer and thus fails to understand our system. I think some comments to that effect have been unpardonably rude and elitist.
No, I disapprove of Mr Grayling because he is simply wrong on most things to do with the law. The courts seem to agree. He decides matters not on what are in the interests of justice but either on the basis of crude political calculation or in a failure to control extremist elements within the MOJ apparatchiks. Either way that is why he should step down or clear out those who have so disastrously advised him. To have presided over a consultation labelled by the high court as unfair and illegal is a shocking thing for a minister in the role of head of our legal system and terribly damaging to our international reputation.
So we shall be ‘campaigning ‘in this general election? We shall expose Grayling as the pro-European ‘inquisitorial system’ politician that he is. We shall:
- Be writing to all candidates standing for Parliament to ask if they agree with the Grayling’s pro-European inquisitorial system replacing our own;
- We shall be writing to all national and local media outlets about this pro-European inquisitorial system approach;
- We shall be writing beforehand to our own MPs sending them the Adam Smith Institute article plus the NAO report especially the graph at Figure 19 on page 39 showing our current average spend; and
- We shall be telling the truth about collapsing volumes and spend due to failure to prosecute crime.
We will have a good election ‘run up.’ We shall be heard. The recent amazing response to the MOJ consultation in the short time available with our use of IT has shown how effective the profession has become in fighting a campaign. As John Paul Jones (the Captain) said: ‘We have not yet begun to fight!’
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts