Blame game: when legal aid gets political

Political interference in the granting of legal aid – whether actual or suspected by members of the public – could become a genuine concern for the government after next April. Should public money be denied cases brought against government departments or that involve unpopular characters or controversial issues, ministers’ impartiality in the decision-making process may come under fire, writes Elizabeth Davidson.

  • Photo: Iraq A night vision image of soldiers from the Duke of Wellington’s Regiment patrolling near Sharkarta, Iraq in 2005 (UK MoD).

When the debacle over contracts for the West Coast mainline exploded onto the front pages last month, ministers at the Department of Transport blamed officials. But who will be to blame if a row erupts over legal aid after the Ministry of Justice subsumes the Legal Services Commission (LSC) next April? That question was posed by Legal Action Group (LAG) director Steve Hynes at this year’s Legal Aid Practitioners Group conference (see HERE).

His point was that the LSC provides a ‘buffer’ for ministers, protecting them from association with controversial cases. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the LSC will be abolished in April and replaced by a new executive agency of the Ministry of Justice, the Legal Aid Agency headed by a director of legal casework.

At arm’s length
There are two sides to the issue. Ministers are more likely to find themselves held accountable for decisions and may no longer be able to pass the buck (or criticise from afar). They may also find it easier to influence decision-makers considering which cases to fund and which to block. While such behaviour is constitutionally unacceptable, it must surely be a sore temptation.

Hynes, in the course of researching a book (Austerity Justice, to be published in November), interviewed politicians, officials and civil servants on this point. ‘It became clear to me that the LSC was very concerned, at least under the Lord Chancellors of previous governments, about the independence of decision-makers.

‘Bill Callaghan, chair of the LSC, has said he’s seen “ministers with arms at very different lengths” when it came to decision-making [on which legal aid cases to fund]. That’s close to an admission that ministers were interfering in decision-making.’

Sir Bill at last year’s Legal Aid Practitioners Group conference cited the Baha Mousa case, the groundbreaking ligation pursued by Phil Shiner on behalf of Iraqi civilians against the military and the subsequent investigation. ‘That inquiry could not have happened if the LSC had not funded a judicial review,’ he noted. Sir Bill also hoped the new director of legal aid casework would be able to ‘draw on the support of colleagues within the new agency in making these difficult and controversial decisions’.

Chinese walls
‘They have set up Chinese walls around the new Legal Aid Agency,’ says Steve Hynes. ‘The director of casework will have some independence of decision-making but I don’t think that is good enough given the history.’

‘In fairness to [former Lord Chancellor] Ken Clarke, officials have told me they were confident that he would not interfere, but this is not about Ken Clarke, it’s about future ministers. There is obvious concern among former and serving officials about the independence of decision-making. There could also be the appearance of bias – particularly if ministers make vociferous comments about it, and even if the director gets the decision right. That undermines the rule of law.’

Hynes points out that ‘appearance is important’, and that the last governments, under Tony Blair and then Gordon Brown, came in for ‘a lot of criticism’ for ‘pandering to the tabloid media’ over judicial decisions they disagreed with.

So what will happen when a controversial case is denied funding? A judicial review will be brought, possibly funded by one of the professional bodies or a campaign group, he says. He singles out the category of ‘exceptional cases’ as one area where the rules can be widely interpreted.

Bodge job
Roger Smith, director of JUSTICE, agrees. In fact, he goes so far as to predict the government will legislate to set up another version of the Legal Services Commission ‘within five years’.

‘I think it’s a bodge,’ he says, ‘and they’ll live to regret the abolition of the LSC.’

He anticipates management problems ahead, pointing out that ‘most countries have found it useful to keep the administration of legal aid separate’, and casts doubt on the independence of decision-making since the Act provides only ‘weak protection’ and the director of legal aid casework is ‘an unsatisfactory attempt to put together a civil servant and a decision-maker’.

‘It will lead to secondary litigation. There will be a highly contentious asylum case or something like that and the government will be much closer to it than they would have liked. They will be thought to have influenced it, and it will go to judicial review. They can decide the policy, that’s fine, but it is not in their interests to be seen as making decisions on individual cases, to have “undue influence”.’

Could the government have abolished the LSC but introduced stronger safeguards?

‘I would have kept the LSC or slimmed it down, or, this would not be great but you could have kept a rump of it as independent decision-makers, or, also not great, created a truly independent appeals system.’ He concludes: ‘It’s just a mess.’

An LSC spokesman said: ‘The LASPO Act makes provision for a Director of Legal Aid Casework, to safeguard independence of decision-making. The Act makes it clear that the Lord Chancellor must ensure that the Director acts independently of him in individual cases.

‘Preparations for the LSC’s transition to Legal Aid Agency are already underway, and we will be communicating on the set up of the agency, including the Director’s decision-making, in the run up to next April.’

 

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