The justice secretary was forced to defend his civil legal aid proposals yesterday after peers and MPs voiced concern that they would harm access to justice.

Hearing evidence from Chris Grayling, the Joint Committee on Human Rights called into question the proposals to remove legal aid for prison law, to restrict judicial review and to introduce a 12-month residency test for civil legal aid eligibility.

Former barrister and Labour peer Baroness Kennedy (pictured) suggested Grayling’s proposals to remove legal aid for those cases classed as ‘borderline’ would put at risk the development of the common law.
 Such cases, she said, help to clarify the law.

If legal aid is removed and they judicial reviews can no longer be advanced, the justice system will become ‘institutionally pro-executive and pro-government’ she warned.

Grayling insisted that the government did not have enough money to fund all of the interesting cases that might be debated in court. ‘The most important thing is to make sure the legal aid system provides for access to justice where it is necessary to do so,’ he said.

Kennedy suggested that Grayling did not have the power under the Legal Aid Sentencing and Punishment of Offenders Act to introduce the residence test, arguing the act gave him the power to increase eligibility, but not to reduce it.

Grayling asserted that he had been advised by the first treasury counsel that he is ‘fully within my powers’. 
‘The legal advice is very clear; I have the power to do it,’ he said.

The justice secretary defended the removal of legal aid for prison law, suggesting the prison ombudsman was the appropriate mechanism to deal with issues that arose.

Responding to criticism that the ombudsman scheme is not statutory and can offer no redress, Grayling said the scheme would be put on a statutory footing when legislative time permits.

As an aside, he noted that the mental health problems of those who find themselves embroiled in the criminal justice system and in prison is a ‘significant unaddressed challenge’ that needs to be dealt with.

Baroness Kennedy tackled him on why victims of trafficking should not get legal aid in all circumstances rather than in the ‘very narrow exceptions’ suggested by the government, while Conservative Lady 
Berridge asked him to exclude from the residence test the 700 or so people who are granted refugee status by the United Nations and come to the UK through the ‘gateway protection programme’.

Grayling said he would ‘take a look’.

Fellow Tory Lord Faulks challenged Grayling on whether he thought the exceptional funding mechanism had worked, given that there had only been 15 successful applications as of September. Grayling argued it was not intended to replicate all the funding streams that had existed, but said the ministry would look at it carefully and make sure ‘nothing untoward is happening’.

Committee chair and Labour MP, Hywel Francis voiced concern that the policies had more to do with price than justice, suggesting that the government felt only people with means should have access to justice.

Responding to the criticisms, Grayling said a fair and free modern democratic society had to ensure people were properly represented, but he stressed that in the straitened financial situation it is unrealistic to give everyone legal aid support. 

There are, he said, limits to the amount the state can provide, and, anyway, courts are not the appropriate forum to deal with all issues.

Questioned by Kennedy, he denied there was any tension or compromise between his political role as justice minister and the role of lord chancellor, where he acts as guardian of the constitution to uphold the rule of law.

In addition, he said he did not believe any of the proposals would undermine the principles which his office as lord chancellor represents. 

Responding to a question from Liberal Democrat Simon Hughes MP, Grayling said the government would not delay the implementation of the proposals until the committee had reported its concerns, suggesting the parliamentarians had sufficient time to do so.