The proposals for ‘transforming’ legal aid are quite stunning in their breadth. In one respect, they are utterly simple: they start from the principle that many recipients of legal aid are undeserving or time-wasters. Without bothering about evidence, they set about the wholesale dismantling of legal aid for anyone approximating to these categories.
But despite this simplicity, hardly anyone seems to fully understand the proposals. Lawyers and activists around the country are transfixed by the catastrophe opening before their own client groups. A kind of numbness sets in – it is hard to find mental space to appreciate the simultaneous catastrophes elsewhere. We throw around disjointed words and phrases: ‘impunity’, ‘rule of law’, ‘the end of the British justice system’. Conversations always come round to ‘but surely they can’t do this?’
Except of course they can. Legislating to bar the unpopular, marginalised and vulnerable from the courts would cause an outcry. But quietly removing their access to legal aid has the same impact, for all the unpopular, marginalised and vulnerable who don’t happen to be rich.
So people charged with criminal offences will lose the right to choose their lawyer. Their duty solicitor could be from TescoLaw, or the private security company that runs the prison in which they will be held after they are advised to plead guilty. The field of prison law will effectively cease to exist – not just the preserve of prisoners complaining about their satellite TV, but of crucial questions of justice, particularly for vulnerable or disabled people, whose lives will be at the whim of prison governors.
Lawyers will no longer be paid for judicial reviews unless they are granted permission. Not just applications ruled to be without merit, but important claims with indisputable merit, will not be paid if they are refused permission. Perversely, even where the government backs down before the case comes to court, the lawyers who have successfully defended their clients’ rights will go unpaid. For a government that claims to understand the needs of business, this is astonishing. It is like not having to pay a taxi-driver if I miss my plane, or a hairdresser if my girlfriend disapproves of the results.
Given that lawyers invariably calculate the likelihood of permission in terms of percentages rather than certainties, it will mean that judicial reviews will largely not be brought. A convenient outcome for the government, whose actions are usually the object of the judicial reviews.
But the most unpopular, the most marginalised, are irregular migrants. If you aren’t legally resident (or an asylum-seeker), you won’t get legal aid for civil cases. Being not legally resident generally means that you will both have urgent need of a lawyer, and not have the money to pay for one. No matter – you are undeserving, and British justice will have no place for you.
The vast majority of people in immigration detention are not legally resident, by definition. They will no longer have legal aid to challenge their indefinite detention without time limit. The most unpopular and marginalised, foreign ex-offenders, frequently spend years in detention, with deportation impossible due to lack of travel documents or legal barriers to removals to their country of origin. Some will be able to represent themselves for bail hearings, although the success rates are far lower than for people with representation. None will be able to meaningfully challenge the lawfulness of their detention, a highly complex area of law which has generated a succession of scathing condemnations of the discredited department formerly known as the UK Border Agency.
For many indefinitely detained migrants, their lawyer is their only hope.
As if all this wasn’t enough, we also face the prospect of a new immigration bill, the latest stage of Theresa May’s crusade against Article 8 and the family rights of foreign ex-offenders. Article 8 is a limited right, which must be balanced against other factors. Even before last year’s abolition of legal aid for these cases, most people would lose, even if they had lived in the UK for most of their lives and had loving families whom they may never see again.
Spurred on by the tabloids, the new bill promises to address a problem that simply doesn’t exist: judges’ alleged refusal to balance the needs of immigration control and public protection against family rights. In practice, under the cover of forcing judges to do a proper balancing exercise, it aims to do the opposite. The legislation will impose on the courts the government’s interpretation of when family rights should take precedence. Which means almost never, of course.
The constitutional implications are alarming here, too. A key purpose of the courts is to oversee the actions of the government and prevent it from abusing our rights. The government is proposing to become judge in its own case by taking away this power of discretion. Even accepting the (wholly untrue) premise that our senior judges are making irrational decisions, this is a major change in the relationship between individuals and the state. Which other government departments will decide that the courts are an irritation whose oversight should be eliminated?
The government is selling these changes as populist assaults on the undeserving. But they amount to a charter for impunity. All branches of government, from the Home Office to local authorities, will know that bad or abusive decisions will go unchallenged, as long as their object is someone who is not wealthy.
Most of us don’t expect the government to abuse our rights any time soon. But if it happens, we may find that the protections we expected are gone. Everyone in society should be alarmed.
This article first appeared on the Justice Gap