The Independent View: Help stop legal aid becoming the new secret courts

Liberal Democrat members know that cuts to civil legal aid are illiberal. And they know the leadership is not facing a  dilemma between protecting liberal values and cutting the deficit because these cuts will cost, not save, money.

It was why the Emergency Motion to oppose cuts to legal aid (until it can be proved there will be “no adverse effect upon access to justice”) came out top of the ballot at conference this year and was then overwhelmingly passed. I had previously asked Lib Dem Voice readers to support this motion in the ballot so I want to say ‘thank you’.

Civil legal aid reforms, along with the further changes proposed to judicial review, attack our constitutional rights by removing our access to justice. They will have both serious and harmful effects for some individuals – from the older person discharged from hospital without care, to the abandoned mother of three who has not managed to regularise her status, despite living in the UK for 10 years – and for society at large as the lack of scrutiny of individual cases leads to the state being beyond the law.

For an observer there are many similarities between legal aid cuts and secret courts.

Both are about core Liberal Democrat issues of holding the state to account and protecting civil liberties. And in both cases the leadership were or are in a position to prevent the attack but either failed or are failing to.

Members voted not once, but twice, on motions that opposed changes to the secret courts in the Justice and Security Bill, just like they’ve voted twice on motions to protect legal aid and access to justice.

Lord Neuberger, President of the Supreme Court, has come out publicly on both issues, saying he was “troubled” by secret courts. On legal aid, he warned Ministers to be “very careful”, adding “The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive”.

Parliament’s Joint Committee on Human Rights (JCHR), recommended amendments to the Justice and Security Bill which were ignored. On legal aid the JCHR is still carrying out its inquiry (which the Minister is refusing to wait for) stating “The human rights implications of the changes to legal aid (…) are of fundamental significance for the right of access to justice and the rule of law.”

And, as with secret courts, the Lib Dems hold the balance of power, as Labour, despite proposing cuts to legal aid while in power, oppose cuts to civil legal aid.

At the same time as the members voted for the legal aid motion in Glasgow, the leadership began to listen to last year’s motion on secret courts. However the Justice and Security Act has come into force, which means the leadership can only now pledge to find “practical alternatives”.

But legal aid is live, just. The government is rushing through the cuts using secondary legislation to bypass Parliamentary scrutiny. If the Lib Dem Parliamentary Party listen to their members and act right now they could protect our civil liberties.

In this week’s New Statesman there’s a postcard that you can send to Nick Clegg (or you can request one from Save Justice UK) – just add why you think the leadership should listen to their members.

It might stop legal aid becoming next year’s secret courts.

* Nick Armstrong of Matrix Chambers is a public lawyer with a particular interest in immigration and asylum, prisoners and community care and mental health.

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12 Comments

  • Grammar Police 19th Nov '13 - 12:21pm

    Nick Armstrong, I believe, is or was, also a member of the Green Party(?). Not that this matters, but for disclosure – and from the point of view of someone who is not a member of a liberal party telling liberals what they do and should believe.

    Whilst I have a lot of sympathy with the arguments (and certainly don’t support the changes to legal aid), this post highlights an issue that many simply fail to understand about coalition. No policy area, no piece of legislation can be judged entirely in isolation. Every bit of legislation contains hundreds of compromises in its own right. When you then think about coalition Government – with compromises across the Government’s legislative programme, you can’t just say – as this author basically does – “this is Nick Clegg’s fault, he should put his foot down”. Sadly, we don’t know why Lib Dem ministers aren’t able to stop or mitigate this, and we possibly never will. Perhaps it’s because we’ve got compromises in other areas? Perhaps it’s not, but my point is it’s not as simple as Nick Armstrong would like it to be.

    The truth of the matter, for a democrat, is that 305 Conservative MPs were elected, and only 57 Lib Dems. This is why the Lib Dems cannot block everything that the Tories want to do. And as for the post card campaign to attack Nick Clegg . . .

  • @grammarpolice

    It seems pretty simple to me. You either believe in principles and justice or you don’t. You either want to stop this country descending into illiberalism or you are illiberal. You either want to influence your party to exert the power it has wisely or you want to hide behind the excuse of ‘compromise’ and ‘deals’. You may find you earn some votes by showing that you have some spine and standing for what you believe in. As another ‘outsider’ who once used to strongly believe in your party as a force for good it would of course seem to me that you should listen to some of those outside and independent voices as offering wise counsel, particularly coming as it does with praise for the Lib Dems as a final bastion of justice. But as an insider beleagured by the relentless abuse your party now suffers from former supporters you will no doubt be deaf to that as well.

  • Were these cuts in the coalition agreement?

  • Melanie Harvey 19th Nov '13 - 8:16pm

    It is also common that, Litigants in Person are just simply denied any access at all, let alone any in secret. Some very complex cases often cannot get legal help at all without up front fees etc.

  • @ Grammar Police –

    So we shouldn’t challenge Lib Dem MPs – because we might (or might not) be getting a compromise somewhere else which might (or might not) be better overall for Lib Dem members/general public/civil liberties.

    So perhaps we shouldn’t presume to use legal aid to challenge the state either – because for all we know the state might be compromising on something else that’s better for us.

    Which pretty much implies we should all stay home and watch TV and let the Government get on with its illiberal agenda of secret courts, withdrawing the law from all but the rich, ensuring nobody can challenge the Government 12 months before an election and anything else they want…

    because assume they know better that just like we shouldn’t challenge the state with Judicial Where to start… this post is under Independent Voice – which I assume doesn’t actually mean you’re independent of any political beliefs but that you’re not a Lib Dem.

    Your argument that we don’t know why Lib Dem Ministers aren’t doing anything and that maybe it’s because Lib Dems have got compromises

  • More lawyers pleading for money for lawyers. Yawn.

    If we wanted to do something really radical we would simplify our legal processes to allow more people to participate without needing lawyers …

  • Grammar Police 20th Nov '13 - 8:04am

    @Paul – either you accept that the vast majority of people voted for illiberal parties or you don’t. Whilst it pains me, the fact that only 24% of the voters backed a liberal party in 2010, it is the case. And this necessitates compromise.

    Of course, the Party can and should be criticised over what it chooses to compromise on, but as a democrat as well as a liberal, I can accept that I’m not always going to get my own way when fewer than a quarter of the electorate backed my party. Instead of attacking, and attempting to undermine the Liberal Democrats – perhaps Nick Armstrong’s time should be better spent educating the public as to why this issue is important (to avoid the general view as expressed by Dominic “More lawyers pleading for money for lawyers”) and encouraging them not to vote Conservative.

    @Paul “you should listen to some of those outside and independent voices as offering wise counsel, particularly coming as it does with praise for the Lib Dems as a final bastion of justice.”

    Nick Amstrong is certainly not independent, and I don’t believe he would claim to be so. And his praise for the Lib Dems as the “final bastion of justice” is tempered by the fact that he actively supports an illiberal party, or has done in the past – he would prefer it if we weren’t in government at all. The reality of the situation is that Nick is arguing as if each policy area, each piece of legislation can be settled in a vacuum. This is simply not the case. I’m not claiming that he may not be right, or maybe that our ministers in the MoJ haven’t tried hard enough, or even that this is an area where a red line should be drawn. But Nick’s argument doesn’t have to concern itself with any other Government department.

    @Paul “But as an insider beleagured by the relentless abuse your party now suffers from former supporters you will no doubt be deaf to that as well.”

    Just because you want something to be true doesn’t make it so, Paul. I knock on the doors of residents every week, so I’ve a fair idea of what people think, both good and bad.

  • Grammar Police 20th Nov '13 - 9:40am

    @Joan – that’s not my argument at all. My argument is that the opinion expressed in this article is far too simplistic, and is actually just an attack on the Liberal Democrats generally. Of course I believe, we should challenge our ministers on their decisions . . .

    “because for all we know the state might be compromising on something else that’s better for us.”

    The margin of appreciation given by judges in judicial review cases is often just that. Judicial review is about government under law, not to posit judges’ views instead of those of elected officials. And legal aid is clearly needed to enable some claimants to challenge the state, in its many guises, to act lawfully.

  • @grammarpolice

    “Just because you want something to be true doesn’t make it so, Paul. I knock on the doors of residents every week, so I’ve a fair idea of what people think, both good and bad.”

    And yet you continue to be an apologist for actions that have grave consequences for very vulnerable people in this country. I’m sorry but that makes it worse not better and I think very much sums up the problem your party now is for the country. To paraphrase:

    Voter: “What you are doing is terrible. Inhuman. It flies in the face of everything decent your party stands for. You’ve put some very bad people in a position of power to do very bad things.”

    Doorstepper: “Compromise is inveitable. Compromise is inevitable. Compromise is inevitable”.

    That’s not politics. It’s Daleks.

    x

  • Simon Banks 20th Nov '13 - 6:12pm

    I accept Grammar Police’s argument that coalition involves compromises and that we can’t know about all the deals that are struck. However, cuts to legal aid are not something agreed in the Coalition Agreement, so Liberal Democrat MPs are free to vote against them. Coalition does not mean the partners have to vote together on everything. So the question for me is, “What could we have gained from the Tories that is so important it could override the thoroughly liberal arguments against cuts in legal aid which will increase inequality (of opportunity as well as outcome, O centrists)?” Frankly, I don’t know. This doesn’t seem to me to be an area where we should be giving ground and while it’s true if we’d got more MPs elected, we’d have had more power, it’s simply not enough to compare the number of Tories with the number of Liberal Democrats and imply our influence is in proportion to that. If you hold the balance on an issue you have a lot of power – and I speak with experience having led a small council group in a no overall control situation.

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