On 2 August, the Legal Aid Agency (LAA) reported the termination of the legal aid contract for Public Interest Lawyers ‘as we consider the firm has breached its contractual requirements’.
The agency wanted to make it clear that it had taken this action ‘after a thorough review of information provided by PIL, following the investigation by the Solicitors Regulation Authority into the firm’. I have no comment on the message. Any legal aid administrator faced by SRA action would want to review all relevant information and decide its response. I have every objection to the messenger.
The LAA is accountable to the lord chancellor, a minister in the government. What about the principle that justice should be seen to be done?
The LAA always was a constitutional monstrosity. It was dreamed up by Labour ministers who did not like the poverty of departmental policy-making shown up by an upstart commission even, or especially, when it established a worldwide reputation for innovation in contracting, quality assurance and legal needs studies. Notably, Scotland has maintained its Scottish Legal Aid Board with the same sort of structure that was ripped up here. Apart from New Zealand, the other major jurisdictions where battles have been fought about the independence of legal aid administration are to be found in the deeper recesses of the former Soviet Union.
The creation of the LAA was implemented by the coalition government in the Legal Aid, Sentencing and Punishment of Offenders Act. At one level, there was simply a change of language: a non-departmental public body became an executive agency. A bunch of commissioners were fired but nothing much else was initially visible. Independence was dealt with by the Heath Robinson provisions of section 4.
This creates the post of the director of legal aid casework (once DoLAC, now DLAC). The DLAC must comply with directions from the lord chancellor but these must not be given in relation to ‘an individual case’. And the lord chancellor ‘must ensure that the director acts independently of the lord chancellor when applying’ any such direction.
Breaches of this provision were never going to be grossly evident. One danger was that the civil servant who was the DLAC would anticipate ministerial reaction to the grant of legal aid – or be discretely informed of it – and turn a legally deserving case down. However, there was also another.
Some lawyers take on cases of constitutional and political importance. They are rarely popular. Think of those brave souls among our number who soldiered on in cases such as the Guildford Four, the Birmingham Six and what became the Hillsborough Inquest. They are heroes now but it was not always so. These cases involved serious allegations against the police which were, for a long time, dismissed as utterly false. Legal aid was not easily obtained. An LAA might well prove considerably more pliable to the interests of those wishing to conceal the truth than did the Legal Aid Board and Legal Services Commission. The lawyers involved are obvious targets.
The lord chancellor’s comment on the SRA investigation was that: ‘It is now for the relevant authorities to decide whether further investigations are required.’ As effectively the relevant authority, she has now decided. Section 4 probably does not apply to the individual cases of solicitors but only to individual cases of clients. So, there is not even the cloak of its dubious independence. Liz Truss has made a decision which her colleague, the secretary of state for defence, argued was a vindication of his claim that PIL was abusing the legal system ‘to falsely impugn our armed forces’. She is a minister in the same government.
The case that has brought all this misery to Shiner relates to Mr Al-Sweady. I have no idea about its facts and they are not relevant to this argument. If lines were crossed, there should be consequences. We do know that in the case of Baha Mousa, Shiner antagonised the government; got justice for the death of an innocent man; and extended the rule of law and human rights to British troops abroad – though Theresa May is said to be searching for ways to remove this tiresome constraint on operational freedom.
Did she also mutter a latter-day variation on ‘Who will rid me of this turbulent priest?’
In a wider context, compare the LAA’s web presence with any other more independent legal aid administrator. The agency treats legal aid as a tiresome bureaucracy. Elsewhere in the world it is seen as an important support of the poor and powerless. Benchmarked internationally, the agency is singularly unimpressive in a field where even 10 years ago we led the world. Whatever the fate of Shiner, the agency has to go.
But, let’s face it, the neutering of independence in legal aid is just too convenient to make that likely.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice