Down, by Law

Secret trials; the continuing destruction of legal aid; over-regulation of the legal profession; the consequent withering of the Bar as a high quality referral profession for all but the richest; the curtailment of judicial review: the law is becoming more inaccessible to the citizen while the powerful are increasingly indulged and immunised from legal challenge and scrutiny. A product of joined-up thinking, or a thoughtless mess?

Secret trials: In November 2012, the unelected House of Lords came to the rescue and gelded the Security & Justice Bill, voting to give the Judge, not the Minister, the power to decide when national security concerns must force trials to be heard in secret. The government wanted – and maybe still wants – to be the judge in its own case on when it could withhold embarrassing sensitive material from the other parties. The spy services fear that what they do will be revealed in Court. They will be hampered, they say, and our allies will stop trusting us with their secrets, to our disadvantage. Those claims may well have weight, but without fully informed argument on both sides, how would a Judge assess it? As the Binyam Mohamed and continuing Mau Mau cases show, the spies have dark and potentially criminal deeds they would prefer to keep hidden. We would not have learned whether public officials whose salaries we pay have connived at torture and other crimes.

Legal Aid and the Legal Aid Sentencing & Punishment of Offenders Act 2012 (LASPOA). To make cuts of £350M from the Ministry of Justice’s £2bn budget, the Act takes many areas of law out of the ‘scope’ of legal aid: as from April 2013, however poor you are, the State will not pay or contribute to the cost of a lawyer if you need help in cases about housing, debt, private family law, employment, education, immigration, and clinical negligence. In a public ‘conversation’ in July 2012, Kenneth Clarke, then Minister of Justice, said in terms that public funding of these cases was not needed, as a matter of policy: the ‘taxpayer was funding a range of litigation that was not justifiable’, but nevertheless the most vulnerable would continue to receive assistance where it really mattered. That is unlikely to be true, because the other source of state-subsidised advice, the Citizen’s Advice Bureaux, have lost funding as well. It was only lawyers, Clarke maintained, who really stood to lose by the reform. Where legal aid remains available, it is heavily means-tested and the continual cuts in fees paid to civil and criminal lawyers have driven many of the ablest out of publicly funded work. (Perversely, criminal defendants with substantial assets that have been frozen, like Mr Asil Nadir, are not permitted to use them to pay their lawyers, and fall back on legal aid at great expense.) Already, more and more people are representing themselves, and inevitably their cases take longer to hear, delaying and denying justice to those waiting in the queue.

On the other hand, if you are an oligarch, or a rich libel tourist, you are welcome to our Courts and you will be indulged with any number of top Silks, and High Court judgments that run to hundreds of pages. If you are a corporation, you will soon be able to buy your way out of being prosecuted by entering a ‘deferred prosecution agreement’ with the SFO (when the Crime & Courts Bill is enacted), which grants you anonymity – you will confess your wrongdoing, pay up, and go about your business, and no one will know.  If you are a poor member of the public, or even just not very well off, and it’s a trivial matter of a court deciding whether you’re guilty of an offence, or you need to challenge a bureaucratic decision affecting your housing benefit or your employment rights – you will struggle for decent representation.

I still think that representing the poorest and the most despised in society is a good use of my skills as a lawyer. I don’t expect earnings in the Sumption league, but I’d prefer to be allowed to work without the witless interference of the regulators who are now forcing the absurd Quality Assessment Scheme for Advocates (QASA). If you want to know how absurd and destructive QASA is, read what Lord Justice Moses said about it in February 2012. It won’t assure quality: it will mark the beginning of ‘best value tendering’, a race to the bottom for price and quality in the provision of representation in criminal work.

Judicial review: the legal mechanism that permits interested parties to challenge administrative decisions taken by local and central government, and other public bodies. The Court has power to review the process by which the decision was made; not the merits of the decision. Government and public bodies have to act rationally and in accordance with the law. If they don’t, their decisions have to be remade. There’s much well-informed debate about whether the Courts have gone beyond their remit of examining process, and have poached on the government’s patch by re-deciding the merits; and the Human Rights Act is where the argument comes into sharp focus. Jonathan Sumption QC (as he then was) in the 2011 FA Mann Lecture and Sir Stephen Sedley in an article in rebuttal in the London Review of Books staked out the terms of the debate – both well worth reading. Their subtle and nuanced intellectual discussion about the separation of executive, judicial and legislative powers collapsed into the MOJ’s risible Consultation Paper. The calibre of the Paper in general can be measured by the reliance, in two instances, on ‘anecdotal evidence’ for things that the Ministry does not like, and a woeful lack of proper evidence. It has been roundly attacked, but will doubtless become law in a lightly modified form. Hence, fewer opportunities for the Courts to ensure that decisions affecting all or many of us are lawfully made.

Not being a natural conspiracy theorist, I see all of this as a series of hopeless and shortsighted bungles, unified only by the desire of the powerful to grab more powers at the expense of the rest of us, with no clear end in view. True, you can’t make an omelette without breaking eggs; but you can certainly break the eggs without getting the omelette.

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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2 Responses to Down, by Law

  1. depressing but helpfully informative – for all the jokes about lawyers, we can do without regulators ensuring that the jokes have no counterpart with increased fairness and justice

  2. Thank you! I wish others would also speak-up because it is the only way that we can get such fundamental problems within the judicial system rectified.

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