We must reel in Grayling and his legal reforms

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Kat Houghton

Since they were revealed, Chris Grayling’s legal aid reforms have been met with widespread criticism. Recently the Justice Secretary was forced to drop his plan to prevent those receiving legal aid from choosing their own solicitors: a state interference which Tory backbenchers argued was ‘un-Conservative’. However, many still have deep misgivings about Mr. Grayling’s other proposals. These criticisms share a common complaint: that little or no consideration has been given to possible ramifications for the justice system.

For example, there are concerns that by creating one fee for criminal trials, there will be a conflict between the financial benefits of a client pleading guilty and the client’s best interests. Another worry is that the proposed 75% reduction in legal aid firms would lead to the collapse of small firms which provide vital specialised legal advice. Some, such as Law Society chief executive Desmond Hudson, have argued that the £37,500 eligibility threshold would lead to an increased number of unrepresented defendants. In 1995, the Equal Opportunity Tribunal of New South Wales compared the length of trials where both parties were represented with those where only one side had representation, and discovered that trials where the claimant was unrepresented lasted twice as long from referral to completion.

As the Australian legal system is closely modelled on our own, it is likely that similar patterns would occur in the UK. The difference in trial length is in part due to the lack of legal training that lay people have. I recently witnessed a case of unfair dismissal at an employment tribunal with an unrepresented claimant. Proceedings were frequently halted when the claimant struggled to find evidence in a poorly organised set of notes, and the judge was repeatedly required to provide lengthy explanations of legal terminology and procedure. An influx of unrepresented defendants would likely lead to an increase in costs, not a reduction.

On the other hand, it cannot be ignored that there are cuts that need to be made to the Ministry of Justice’s budget. Fortunately, there are more effective ways of reducing costs by modernising procedure and increasing efficiency. Unfortunately, Mr Grayling appears to have overlooked these. In 2006, the National Audit Office reported that “£173 million was spent last year on trials and hearings in magistrates’ courts that did not go ahead as planned”. There are many reasons that trials are delayed or adjourned. During my time as a mini-pupil I saw trials delayed due to simple administrative errors, such as misplaced documents or failure to book interpreters. In making improvements to the process by which cases are prepared for trial, many of these administrative errors could be avoided. 

In 2012, the National Audit Office published a report on local projects’ attempts to improve the Criminal Justice System. In Kent, a trial system was run which attempted to reduce the number of processes between charging a defendant and a trial at Crown Court, reducing the chance for administrative error and improving victim and witness care. Under the project, trial readiness increased from 45 per cent to 70 per cent: an additional 250 trials ready to proceed when they reach court. In Warwickshire, the Justice Centre was created to provide a “‘one-stop shop’ for services to victims, witnesses, suspects and the wider community”. By housing services such as Warwickshire Crown Prosecution Service and victim and witness support in the same building, the hope was to share resources and simplify the procedure for victims and witnesses. The results indicated the project would annually produce around £650,000 of non-cashable savings and around £800,000 of cashable savings, as well as improving effective trial rates and witness care.

Put simply, there are possible ways of reducing legal spending without damaging the legal system.

The legal aid proposals are currently undergoing review, with a debate in Westminster Hall and a published second consultation on the finalised proposals due in September. The reasons for success in the projects listed in the report above include “good strategic governance structure” and “establishing a sound understanding of the needs of service users before commissioning services”. Perhaps if Mr Grayling were to learn from other successful projects and be mindful of the long-term impact his reforms will have on those who require legal aid, he will be able to produce an efficient and fair system of which we can all be proud.

Human Rights Act: Some questions for Mr Grayling and Mrs May

Craig Prescott 10.51am

Over the weekend, Chris Grayling, the Justice Secretary and Lord Chancellor, indicated that a Conservative majority government could repeal the Human Rights Act. Meanwhile, Theresa May, the Home Secretary, has suggested withdrawing from the European Convention on Human Rights (ECHR) itself.

These are two very different things, and there is some muddled thinking involved here; but if both were to be pursued the policy could be called ‘Withdrawal and Repeal’.

As Mr Grayling has admitted himself, there needs to be a lot of work put in to the detail (to put it mildly). But as work towards possible 2015 manifesto pledges starts, here are some questions and issues that need to be considered.

  1. Why? It can’t be for political advantage. At the last election, 3.1 per cent of people voted for a political party who advocated ‘Withdraw and Repeal’, namely UKIP. By contrast, a combined 52 per cent of the electorate voted for Labour and the Liberal Democrats, who did not. Whatever Mr Grayling and Mrs May may think, the electorate has shown time and time again disinterest in tinkering with constitutional matters. This does not look like a massive vote winner to me, in face of more pressing matters such as living standards and the broader economy.
  2. Replacement? A British Bill of Rights has been suggested, but to what end? The content of such a Bill of Rights is likely to be similar, if not identical, to the content with one or two additions (such as a right to a jury trial) to make such a document ‘British’. Take a look at the Articles incorporated into English Law by the HRA, the Right to Life, Prohibition of Torture, Prohibition of Slavery and Forced Labour and the Right to a Fair Trial and so on. Would you like to live in a country that does not provide in law for these  protections? As one of the finest judges of recent times, Lord Bingham stated in his book the Rule of Law, countries that do not make such protection in law tend not to the best of places to live. Belarus or North Korea? Another issue is how are the courts going to interpret any such legislation. Experience before the HRA suggests that on the whole, the courts will take notice of the ECHR, as they do of other international treaties and case-law for interpretative guidance.
  3. Leave it to Parliament? If ‘Withdrawal and Repeal’ is pursued, then the position will be more akin to the days before the HRA, but without a route of appeal to Strasbourg. This is a dangerous option, as it risks pitting the courts and Parliament in direct opposition. It is easy to think that human rights began with the HRA, but that neglects the strong - if imperfect - vein in the common law that protected people’s rights before the HRA. One could go back to the 17th century, but during the 1990s the courts began to recognise at common law certain rights as being of ‘fundamental’ status, such as access to justice. This fundamental status means that the courts require strong signals from Parliament before the courts hold that they can be interfered with. This is an open-ended category of right, creating a clear risk of an ongoing conflict between the courts and Parliament, potentially giving more scope to the courts, the exact opposite of what the Lord Chancellor, Mr Grayling, wants. Such an approach would be destined not to end well.

There are other issues to consider. The devolved institutions are required under the devolution framework to comply with the ECHR at all times. Any amendment of this requirement is likely to require their approval, which the Commission on the Bill of Rights indicates will not necessarily be forthcoming as approval of the ECHR is generally seems to be higher outside of England than within it. (This raises concerns that the Conservative Party becoming ever more an English, and not British Party). Further, the EU is engaged in an ongoing process to become a signatory to the ECHR, meaning that even if ‘Withdraw and Repeal’ is pursued, the ECHR will still be a highly relevant to UK law as long as Britain remains a member.

All of the above is not to say that the human rights architecture of the UK and Europe is perfect. Far from it. There are issues over the length of time it takes to hear cases, and the number of appeals possible in human rights litigation are both issues about which courts themselves have voiced concerns. A close look at the process shows that the vast majority of the time, it is these problems which lie at the root of problems with human rights. After all Abu Hamza still got deported to America. Is it really necessary to embark on such a hazardous journey, jeopardising a central tenet of the unwritten constitution that Parliament and the courts respond to each other in a dialogue and understanding, to solve a problem which for the vast majority of the electorate is simply not there?

Ultimately, the problem that Mr Grayling as Lord Chancellor (who has a duty to uphold the rule of law) needs to grapple with is that some human rights are innate in the liberal democracy to which he wishes to belong and to strengthen. Any human rights apparatus constructed does not create rights but merely recognises them.

Craig Prescott is a member of the School of Law at the University of Manchester. Follow him on Twitter @craigprescott