Chris Grayling is the first politically-appointed Lord Chancellor who has never been a lawyer. Photo: Getty
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Operation Cotton and the 23 pages which skewered Chris Grayling’s legal aid reforms

A judge has halted a high-profile fraud trial after the defendants were left unrepresented because of legal aid cuts.

Did you hear the “snap”?

If you were in Southwark Crown Court at 11:30 yesterday morning, you would definitely have heard it.

That was when His Honour Judge Leonard QC delivered a ruling (pdf) which in 23 pages put Justice Secretary Chris Grayling’s major legal aid reforms in jeopardy.

The judge effectively terminated the prosecution of five men for allegedly stealing over £5m from UK investors. The reason? The government had failed in its duty to ensure the defendants were represented.

The barristers who were supposed to represent the men pulled out of the case after the Ministry of Justice cut legal aid fees for complex cases by 30 per cent. They were told if they refused to work under the new rates their existing contracts would be terminated.

Back to that “snap”. The UK has an unwieldy but remarkably flexible unwritten constitution. Think of that scene where Gulliver wakes up to find he is bound by hundreds of tiny little ropes. In the UK, those in power are also bound by tiny ropes, woven over centuries to prevent them oppressing the people.

It was those ropes which stopped fascism and communism succeeding here. As George Orwell said in 1941, the “totalitarian idea that there is no such thing as law, there is only power, has never taken root”.

But one of those ropes just snapped.

It began to fray almost a decade ago. That was when the Constitutional Reform Act fundamentally changed the ancient role of Lord Chancellor. For hundreds of years the Lord Chancellor had been a judge or senior lawyer. A key part of his job was speaking up in Parliament for the rule of law.

No more. Now the Lord Chancellor is a political appointee and is responsible for managing the criminal justice system. He need not know anything about law.

It took a while for the change to be felt. Jack Straw and Ken Clarke, the first two of the new breed, were former lawyers who understood the system they were entrusted to protect.

But that changed with Chris Grayling, the first non-lawyer to hold the post in over three centuries. The result has been constitutional carnage, wrought on three fronts.

First, there have been swingeing cuts to legal aid. Legal aid is often described the NHS for justice. Providing representation for poor people in proceedings which could affect their lives as much as a serious illness has been a proud tradition. But facing huge cuts to the budget, lawyers have been unable to generate the kind of sympathy that has kept cuts away from doctors and nurses.

Second, human rights laws have been under attack. Grayling is soon to unveil plans to curtail the role of the European Convention on Human Rights, a system created over 60 years ago largely by Conservative lawyers. Lawyers who speak up against the proposals are branded self-interested fat cats, even though they are amongst the lowest earners in the profession.

Third, there has been an assault on Judicial Review, which lets ordinary people can take public authorities to court to ensure they act within the law. The Joint Committee on Human Rights (JCHR) said last week that evidential basis for the Government’s proposals is “weak”.

The JCHR also said the government’s approach “expose[d] the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”. It criticised Grayling’s “energetic” and “politically partisan” pursuit of reforms which “place direct limits on the ability of the courts to hold the executive to account”.

The most telling evidence to that committee was Grayling’s own. In an attempt to show how seriously he takes protecting the rule of law, he said he would never criticise judges except “if I am directly involved in a case, I disagree with the judge and plan to appeal it”. How can the minister fighting hundreds of prison-related judicial review claims also be responsible for reforming the system?

So the rope frayed. Then, yesterday, it snapped. The government argued that it should be allowed an adjournment, to some time in 2015, so that representation could be found. No, said the judge. Because to allow the State a long delay to put right its “failure to provide the necessary resources to permit a fair trial” would, he ruled, be “a violation of the process of this court”.  

The judgment may be appealed. But even so, a number of other serious fraud trials are at risk. Crimes will go unpunished and victims will be denied justice.

Some good may come of this. The public may begin to realise that the Lord Chancellor’s reform programme, motivated by ideology not analysis, is putting the rule of law at risk.

We cannot afford for another of those ropes to snap.

Adam Wagner is a barrister specialising in human rights and public law. He is the founding editor of UK Human Rights Blog.

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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The Women's March against Trump matters – but only if we keep fighting

We won’t win the battle for progressive ideas if we don’t battle in the first place.

Arron Banks, UKIP-funder, Brexit cheerleader and Gibraltar-based insurance salesman, took time out from Trump's inauguration to tweet me about my role in tomorrow's Women’s March Conservative values are in the ascendancy worldwide. Thankfully your values are finished. . . good”.

Just what about the idea of women and men marching for human rights causes such ill will? The sense it is somehow cheeky to say we will champion equality whoever is in office in America or around the world. After all, if progressives like me have lost the battle of ideas, what difference does it make whether we are marching, holding meetings or just moaning on the internet?

The only anti-democratic perspective is to argue that when someone has lost the argument they have to stop making one. When political parties lose elections they reflect, they listen, they learn but if they stand for something, they don’t disband. The same is true, now, for the broader context. We should not dismiss the necessity to learn, to listen, to reflect on the rise of Trump – or indeed reflect on the rise of the right in the UK  but reject the idea that we have to take a vow of silence if we want to win power again.

To march is not to ignore the challenges progressives face. It is to start to ask what are we prepared to do about it.

Historically, conservatives have had no such qualms about regrouping and remaining steadfast in the confidence they have something worth saying. In contrast, the left has always been good at absolving itself of the need to renew.

We spend our time seeking the perfect candidates, the perfect policy, the perfect campaign, as a precondition for action. It justifies doing nothing except sitting on the sidelines bemoaning the state of society.

We also seem to think that changing the world should be easier than reality suggests. The backlash we are now seeing against progressive policies was inevitable once we appeared to take these gains for granted and became arrogant and exclusive about the inevitability of our worldview. Our values demand the rebalancing of power, whether economic, social or cultural, and that means challenging those who currently have it. We may believe that a more equal world is one in which more will thrive, but that doesn’t mean those with entrenched privilege will give up their favoured status without a fight or that the public should express perpetual gratitude for our efforts via the ballot box either.  

Amongst the conferences, tweets and general rumblings there seem three schools of thought about what to do next. The first is Marxist  as in Groucho revisionism: to rise again we must water down our principles to accommodate where we believe the centre ground of politics to now be. Tone down our ideals in the hope that by such acquiescence we can eventually win back public support for our brand – if not our purpose. The very essence of a hollow victory.

The second is to stick to our guns and stick our heads in the sand, believing that eventually, when World War Three breaks out, the public will come grovelling back to us. To luxuriate in an unwillingness to see we are losing not just elected offices but the fight for our shared future.

But what if there really was a third way? It's not going to be easy, and it requires more than a hashtag or funny t-shirt. It’s about picking ourselves up, dusting ourselves down and starting to renew our call to arms in a way that makes sense for the modern world.

For the avoidance of doubt, if we march tomorrow and then go home satisfied we have made our point then we may as well not have marched at all. But if we march and continue to organise out of the networks we make, well, then that’s worth a Saturday in the cold. After all, we won’t win the battle of ideas, if we don’t battle.

We do have to change the way we work. We do have to have the courage not to live in our echo chambers alone. To go with respect and humility to debate and discuss the future of our communities and of our country.

And we have to come together to show there is a willingness not to ask a few brave souls to do that on their own. Not just at election times, but every day and in every corner of Britain, no matter how difficult it may feel.

Saturday is one part of that process of finding others willing not just to walk a mile with a placard, but to put in the hard yards to win the argument again for progressive values and vision. Maybe no one will show up. Maybe not many will keep going. But whilst there are folk with faith in each other, and in that alternative future, they’ll find a friend in me ready to work with them and will them on  and then Mr Banks really should be worried.