JusticeWatch: ‘We need to pick our battles’

Roger Smith begins a new column picking up news stories relevant to legal aid

Legal aid practice has come in for a battering this month. Judicial review was the subject of potshots from both David Cameron and Sir John Thomas. Chris Grayling then chipped in to challenge legal aid costs in high profile judicial reviews. He followed that by suggesting restrictions on legal aid for  compensation challenges on prisoners’ votes. There will be more of this sort of thing as the Government scrambles to restrict the cost and inconvenience of court challenge. Those defending legal aid need to respond with care to each individual point of attack. We need to keep the public onside.

Let us begin with judicial review. David Cameron’s intervention verged on the bizarre. He chose a speech to the CBI to raise a hurrah for the goverment’s support for a ‘buccaneering, deal-making, hungry spirit’.

So far, so predictable. But then the PM  segued into an analogy of how this required revival of the spirit of the second world war. Even if we might not need to test anthrax on unsuspecting Scottish islands, we certainly needed to cut down the judicial reviews which were stifling British industry.

His point was somewhat weakened by Virgin’s recent success, precisely in the form of judicial review, in a case that had totally wasted his own government’s contracting policy on the railways. Regardless, we are going to get reduced appeal rights and shorter application times. This is flag-waving unlikely to make much difference to Britain’s economic decline. On the other hand, these restrictions will impact severely on immigration and asylum cases, the largest group of judicial review applications. They are likely to prove irritating, irrelevant and will probably, in the end, be unworkable.

Too much harrumphing
Sir John Thomas’ intervention on judicial review was more serious. In a couple of recent cases, Hamid and Awuku, he lambasted what he saw as abuse of process or incompetence by immigration solicitors in making urgent judicial review applications to stop deportations. The core of his argument was that: ‘there rests upon an advocate or other officer of the court the highest obligations of disclosure when making an application to the court for ex parte (or without notice) relief’. His remarks have caused some harrumphing among immigration practitioners. They were particularly incensed by his suggestion that miscreants would find themselves named and shamed and referred to the Solicitors Regulatory Authority.

Some of the defensive reaction would seem to be overplayed. Sir John’s statement of the duty on a lawyer must be correct. If you are proceeding ex parte and asserting urgency then, of course, you must make full disclosure. And let’s face it: there may well be a small minority of solicitors who are persuaded to suppress unhelpful elements of their client’s case.  Much more often, of course, less than full disclosure in late applications is the result of other factors: incompetence, inadvertence, new forms that no one knew about, inadequate instructions from clients, obstructive action from the UKBA. Nevertheless, as a statement of principle, Sir John is, frankly, right. We might as well agree with him publicly – for all that the most effective sanctions might lie in the areas of costs and legal aid than discipline.

And, we need to tread with a bit of care around costs. Those in Abu Hamza’s case certainly look high – justifiable though they may be under existing rules. The case was complex and raised multiple issues but a legal aid bill of over £600,000 understandably raises eyebrows. There will be all sorts of reasons but nothing will change the fact that publicity for this kind of sum does no favours for the  majority of lawyers for whom fees like this are just the object of dreams. The grant of legal aid to Abu Hamza was right:  he had a case that should have been heard – even though he lost. But, we surely have to admit that it is reasonable to ask how we can get fees like this down to something more reasonable. If we do not, then it will encourage more assaults on eligibility.

Eligibility takes us, finally, to Chris Grayling’s musings that he might find a way to stop legal aid for compensation claims in relating to prisoners’ voting. This is outrageous. It is the sort of political interference in decision-making which the abolition of the Legal Services Commission will make much easier. If the government wants to defy the European Court of Human Rights, it can do so. But it must take the consequences. These will include liability to pay compensation. Manipulating legal aid rules to avoid embarrassment smacks of desperation.

Attacks like these will increase as we approach the April deadline for the introduction of the LASPO cuts. Those of us defending legal aid need to pick our public battles and make sure we win them.

 

 

 

Roger Smith

About Roger Smith

Roger is an expert in domestic and international aspects of legal aid, human rights and access to justice. Roger is a visiting professor of law at London South Bank University and an honorary professor at the University of Kent. He is a solicitor and has been director of the Legal Action Group, JUSTICE and West Hampstead Community Law Centre as well as director of policy and legal education at the Law Society, London, and solicitor to the Child Poverty Action Group. Roger was awarded an OBE in 2009 and received a lifetime achievement award from the Law Society in October 2012

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