Legal Aid Cuts = Unlawful!

August 4, 2018

Under the current Conservative Government, the English legal system has experienced crippling cuts to legal aid. Legal aid essentially acts as a safeguard to providing a fair process and individual liberty within the criminal justice system. This has been a subject of contention for some time and remains to be so. It also applies to a wide range of disciplines within law. Recent criticism from MPs has been with regard to the lack of assistance for asylum seekers, who are particularly vulnerable. This has since been echoed by the Joint Committee on Human Rights

 

It is clear that these cuts have wielded severe consequences, some of which the Government may not have necessarily foreseen. Earlier this year, barristers practising in criminal law struck back, refusing to accept instructions from legally aided clients in a bid to make a stand against further Government cuts, initiated by Garden Court Chambers. This resulted in members of the Criminal Bar Association (CBA) accepted a £15m offer from the Ministry of Justice to raise payment rates for reading evidence and documents for trial. Further, Article 6 of the European Convention of Human Rights (ECHR) is frequently brought up in conjunction with this subject. Article 6 grants citizens the right to a fair trial. Slashes to legal aid have resulted in many of society’s most vulnerable having to appear before the courts of the land to defend themselves, competing against a prosecution who are made up of legally trained individuals. In the current climate, the number of solicitors in England and Wales registered for criminal work has fallen sharply as cuts to legal aid have made the profession less and less profitable. The lack of access to legal representation puts Article 6 rights in jeopardy when one considers that lay people generally do not appreciate the nuances of legal procedure.

 

In the most recent chapter of legal aid cuts, the High Court ruled that particular cuts to legal aid regarding the reading of evidence were unlawful, signalling a victory for criminal law and a damning defeat for the Ministry of Justice. The judgment comes during a crisis over well documented failures to disclose key documents that have led to the collapse of a number of rape cases. One can imagine that if those cases had proceeded without such disclosures, Article 6 rights would most definitely be infringed.

 

The judicial review challenge (I briefly explain Judicial Review here) was brought by the Law Society, which represents solicitors in England and Wales. It argued that the cuts were unlawful because the Ministry of Justice did not take account of the huge volume of material generated through digital media. It was clear that the judges hearing the case were not won over, even stating that they found it “difficult to express in language of appropriate moderation why we consider these arguments without merit”.

 

Part of the concern surrounding these cuts were that they were imposed in defiance of a departmental consultation process in which 97% of respondents opposed the changes. There are further concerns over the consultation process itself. Part of the decision ruled the consultation unlawful because “the key analysis relied on … was not disclosed to the consultees, rendering the consultation process unfair and used methods that were statistically flawed, making it irrational to rely on the analysis.

 

Mr Halford, who represented the Law Society, stated after the trial that “had the Law Society not stepped up to defend criminal defence solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.” One can imagine the miscarriages of justice that may have arisen as a result of these legal aid cuts, which have thankfully, been averted.

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