The disturbing conflict at the heart of British justice

Catherine Oborne discusses the reasons behind today’s lawyers’ strike and explains why the Lord Chancellor must retain an independent voice to speak up for the rule of law. 

Today, lawyers go on strike for the second time since January.  The battle is with the Lord Chancellor, Chris Grayling, over his proposed reforms to legal aid. 

Strike action, from a generally traditional and conservative profession, is all but unprecedented and threatens to bring the criminal justice system to a halt. What has brought relations between the legal profession and Mr Grayling to this pitch?

Over a decade ago, the Blair government announced its plan to abolish the ancient post of Lord Chancellor.

The announcement did not come through Parliament, but by press release.

The news shocked the judiciary. One senior judge has described having to pull over and stop his car when he first heard the news broadcast on the radio. Lord Woolf, then the Lord Chief Justice, delayed his retirement to deal with the constitutional fall out.

The post of Lord Chancellor is ancient, dating back to 1068, just after the Norman Conquest. It represents the rule of law, tradition and history.

In 2003, the Lord Chancellor was head of the judiciary, speaker of the House of Lords and held a seat in cabinet.

It soon emerged that the plan to “abolish” the role of Lord Chancellor was impossible to carry to out. So embedded was the office in the British constitution, that such a change would have required primary legislation on an epic scale.

So the Blair government backed down.

With hindsight, this attack on the then head of the judiciary looked deeply symbolic just as the same government was embarking on a major assault on the rule of law, with the attempts to introduce detention without trial and to use evidence from torture in court.  Attempts which were eventually blocked by the judgments of our senior judiciary, in particular, Lord Bingham.

So, the title of Lord Chancellor survived, but stripped of many of its traditional powers and a great deal of its status.

Crucially, the Lord Chancellor is now no longer head of the judiciary. That role was transferred to the Lord Chief Justice.

Unfortunately, we are now beginning to live with the consequences of the rushed attempt to abolish this ancient office.

On taking office, our Lord Chancellor, Chris Grayling, took a solemn oath to protect the rule of law and to resource the court system properly. As a member of Cabinet, he is, quite literally, the voice of the constitution in the Prime Minister’s ear.

But Mr Grayling does not simply serve as Lord Chancellor. Since the creation of the Ministry of Justice in 2007, the Lord Chancellor has also served as Minister of State for Justice.

However, the current battle over legal aid reform has revealed a real and serious conflict between the two posts.

The rule of law requires a properly funded and independent legal system. Because we have an adversarial system, courts cannot function without barristers and solicitors on each side preparing and presenting cases properly. Judges do not have the power to investigate cases themselves. They rely on the lawyers to put evidence before them and the jury.

There are real concerns that the proposed reforms to legal aid will seriously undermine the quality of that adversarial system.

Mr Grayling’s reforms expect criminal lawyers to work at rates which are simply financially unaffordable. Barristers’ pay has been cut by approximately 40% in the last 17 years. In real terms, these further reductions mean that many criminal defence solicitors firms will go out of business and many barristers will no longer be able to practise in criminal law.

At the same time, Mr Grayling has been seeking to build up an American style “public defender” service. The service has taken on two QCs (and is offering up to six figure salaries to new recruits).  There are grave concerns that such a system would severely compromise the independence of the legal profession and its fearlessness when fighting against state corruption.

If you have been accused of a crime by the State, would you really want to be represented by the State?

At the moment, we can be proud to say that our legal profession is the envy of many other countries. We have brave barristers and solicitors who work hard and long into the night to secure the right result for their client. We have a system which means that if you are accused of murder or another serious offence, you are guaranteed quality representation if you cannot afford it. These reforms threaten to destroy all of that.

Mr Grayling’s reforms will mean that quality representation will remain open only to the very rich.  They will pay privately.

For anyone on a modest or even reasonable income, which includes almost all young people, such representation will be out of their reach.

Without properly paid and skilled lawyers on each side of the criminal justice system, miscarriages of justice will occur.  Innocent people will be convicted.  Guilty people will go free.

Such a proposal should make Mr Grayling as Lord Chancellor sick to his stomach.

It is not only the lawyers who have been driven to speak out about his proposals.  Even Lord Neuberger, the President of the Supreme Court, recently gave the government a public warning about the proposed reforms to legal aid.  It is very unusual for a judge ever to speak publicly about government policy.  Might it be that the President of the Supreme Court feels compelled to speak out because our own Lord Chancellor isn’t speaking loudly enough in the Prime Minister’s ear?

And is it possible that the current Lord Chancellor is less likely to speak up in pursuit of the rule of law than his predecessors because he is a member of the House of Commons?

Jack Straw was the first Lord Chancellor ever to have been a member of the elected House, when he was appointed in 2007. Historically, the office of Lord Chancellor was reserved for members of the House of Lords.  As the Highest Officer of State, he was not expected to have any further political ambitions. That changed when the new Constitutional Reform Act 2005 explicitly allowed a Lord Chancellor to be selected from either House.

The danger here is obvious.  Mr Grayling has to be re-elected at the 2015 General Election.  Not only that, as a fairly junior Cabinet Minister, he no doubt harbours ambitions for ministerial preferment. Offices which are now, appropriately, reserved for members of the elected House, the Home Office; the Foreign Office; even the position of Prime Minister, are within his sights and grasp.

But the voice of the constitution is not always popular.  It is often in the minority.  It demands that a person, whoever he or she is, regardless of race, religion, wealth or status, is treated equally and fairly before the law.  That is the foundation of a civilised and free society.

But, if you want to be re-elected in two years’ time, or promoted to higher office, that makes your job as Lord Chancellor quite difficult.

To make matters worse, Mr Grayling is the first non-lawyer to serve in the post of Lord Chancellor since the mid 17th century.  Lawyers should be careful not to be self-important about this.  Just because someone is not a lawyer does not mean that they do not understand and respect the constitution.

But, Mr Grayling has repeatedly either ignored or misunderstood the law when speaking to the public.

His comments to the Spectator magazine that he wished ‘to see our Supreme Court being supreme again’  are such an example.  If he cared to read the Human Rights Act, he would find that the Supreme Court is required to ‘take into account’ judgments of the Strasbourg Court, but is not bound to follow them.  In fact, there are examples of cases where the Supreme Court has refused to follow Strasbourg, leading Strasbourg itself to rethink its jurisprudence (for example, on the law of hearsay). No doubt Mr Grayling’s comments were designed to appeal to voters who wish to see the Human Rights Act repealed.  But it is not acceptable for our Lord Chancellor, the guardian of our legal system, to make political points by ignoring what the law actually says.

The current practice of reserving the post of Lord Chancellor for an MP who is Secretary of State for Justice is constitutionally unsound.  It leaves us all with a real danger that matters of constitutional importance will not be publicly or privately ventilated.

The clamour outside government is rising and rising. But there must be an independent voice to speak up for the rule of law in Cabinet.

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