No one can say that I have not done my bit for the profession. I gave evidence on the crass nature of the price-competitive tendering proposals to the Commons Justice Committee immediately after the Law Society president. However, we should register other concerns with the government’s current legal aid proposals. Among other cuts to scope, the lord chancellor intends to add a UK residence test to civil legal aid – something that will particularly affect judicial review cases.
Ministers of all political persuasions do not like judicial accountability for their actions. Theresa May’s hostility to the Human Rights Act is more than matched by that of a number of her Labour predecessors. Leaving the frontal assault on the side for the time being, Chris Grayling is quietly trying to reduce the scrutiny of government by restricting the scope of legal aid. Most seriously, he wants to impose an additional test of one year’s residency on those taking most types of judicial review cases other than claims for asylum.
The question asked in the consultation implies a reasoning based on the personal circumstances of an applicant: ‘Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK?’ Any case before the courts must, of course, indicate a sufficiently strong connection with the UK to meet our rules as to jurisdiction. These can be pretty tenuous. In Berezovsky v Abramovich, one of the great legal earners of recent times, jurisdiction was accepted even though both parties were domiciled abroad and the assets at stake were Russian. This is, however, the sort of trade that the lord chancellor wants to increase. He recently banged the drum for British litigators: ‘People all over the world know that for dispute resolution you come to London.’
What may remain true for sundry oligarchs will not, if Grayling gets his way, be good for anyone else without equivalent resources – however egregious the conduct of which they complain. The lord chancellor operates in the shadow of a number of scandals about the operation of our armed forces abroad that have been revealed through litigation in the UK courts. The combined effect has been to reveal the inevitably grim reality of military action as opposed to the bright rhetoric by which it is sometimes justified. This is inconvenient for UK politicians inclined to doctrines of liberal interventionism, like Tony Blair, but correspondingly important for the education of UK citizens. Concealment, cover up and obfuscation carry major political dangers: they encourage too easy a public acceptance of irresponsible military adventures.
In recent years, the courts have played a bold – and, in government circles, unpopular – role in extending the state’s submission to the rule of law both at home and abroad. Nationality should not affect public law jurisdiction. As Lord Scarman said in Khawaja (helpfully quoted by Matrix Chambers in its evidence on these proposals): ‘Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others… There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed.’
This was in a case reported in 1984 when the courts would not have accepted so wide a jurisdiction in relation to judicial review outside the UK. However, the point remains good now that, in certain limited circumstances, they have. If the actions of the UK government are within the jurisdiction of the UK courts, the nationality or the residence of a potential litigant in a matter of public law should not matter. The rules on legal aid should follow those on jurisdiction.
You do not need to be a conspiracy theorist to identify the wider picture of what ministers are up to. They are deploying a four-fold strategy to get the genie of judicial scrutiny back in the bottle. First, they wanted secret courts to suppress embarrassing evidence. Second, they want to reduce legal aid. Third, they are attacking the Human Rights Act. Eventually, they even talk of taking the UK out of the European Convention on Human Rights.
The current set of legal aid proposals will not just save money; they are intended to strengthen the state against the individual. PCT creates a contracted public defender scheme. The residence proposals are designed to roll back scrutiny in circumstances most easily demonstrated by the disgraceful murder of Baha Mousa in Basra. This was only revealed by the courageous actions of a dedicated solicitor actually willing to mortgage his own house as his clients fought for legal aid eligibility. Public accountability should not depend on such levels of professional commitment, proud of them though we should be.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice