Chris Grayling v the Tax Payer – Round 1

On 3rd July last week Chris Grayling, the Lord Chancellor and Secretary of State for Justice, gave evidence to the Justice Select Committee on his proposals to transform criminal and civil legal aid. Mr Grayling made a point of saying that his first priority was to ‘meet the strictures that the Treasury has put upon him’. The budget is tight, and he has to make cuts. Being a politician, Mr Grayling was keen to say that he is “open to discussion”  because he “wants to get it right”. At the same time though, he made it clear that he actually has very little room for manoeuvre. Savings simply have to be made. Legal aid is tax payer’s money after all.

It would appear then that Mr Grayling has not read the number-crunching done by a barrister at Matrix Chambers, Dr Nick Armstrong. In a briefing note published on 24th June 2013, Nick Armstrong looks at the proposals to change civil legal aid, which the government say will achieve £6m in savings. He concludes that on a conservative estimate the proposals are in fact likely to generate on-costs of nearly £30m. The full briefing note is well worth a read, but here’s a summary of some key points.

Creating costs, not making savings

Prison law

  • Restricting legal aid for prison law, so that it is no longer available for prisoners seeking to challenge decisions relating to their treatment in prison, their categorisation, and resettlement issues will cause delays in people being released from prison. The tax payer will have to bear the significant costs of keeping someone in prison for longer than is actually necessary;
  • The government’s suggestion that problems experienced by prisoners should be dealt with in the prisons complaints system and by the Prisons and Probation Ombudsman (rather than in the courts, thanks to legal aid) will mean that the costs of these regimes will increase as more people fall back on using them. The tax payer will have to pay for the cost of Ombudsman complaints, which are actually much higher than a solicitor’s fixed fee;

The Residence Test

  • Introducing a system where people who are not in the UK lawfully, and who have not been in the UK lawfully for at least 12 months at some point in the past are not abe to receive legal aid will be very expensive because it will take time, and therefore cost money, for a lawyer to assess whether a client meets the test. The tax payer will have to pay for the time it takes to carry out this assessment, and for any challenges to it;
  • Allowing legal aid for people who don’t meet the test if there are ‘exceptional’ circumstances will mean that the tax payer will have to pay for exceptional funding applications to be considered by the Legal Aid Agency, and for any challenges to its decisions to refuse exceptional funding;
  • Preventing almost all people who are held in immigration detention centres from getting legal aid for applications to be released will mean they are likely to be detained for longer. The tax payer will have to bear the considerable cost of depriving someone of their freedom.

Judicial Review

  • The government plans to only pay for judicial review applications if  they reach a certain stage, known as ‘permission’ will mean that lawyers will have an incentive to make the case go on to this stage, even where it might not be necessary, because they need to get paid for the work they do.
  • Lawyers are also more likely to push for the court to make an order for the defendant (the public body who is defending the case for example a Local Authority, or the Secretary of State for the Home Department) to pay costs of the application, if there is no legal aid available. If the Court makes a ‘costs order’ another government department will have to pay up, but it is still the tax payer who will foot the bill.

What should the tax payer pay for?

Mr Grayling is right to say that there are some things the tax payer should not have to pay for. But he is wrong about what these things are. He says the tax payer should not have to pay for legal aid when some people (prisoners, migrants, or other groups that he thinks are unpopular) are being treated in a way that might be unlawful and want to enforce their rights under UK law. We think the tax payer should not have to pay for reforms that will create far more expenses than the savings they make. Especially not when the cost to people’s lives – people who are often the most disadvantaged in our society – and to our justice system as a whole are so high.

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