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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Theresa May can play big fish with devolved nations - in the EU she's already a nobody

The PM may have more time for domestic meetings in future. 

Theresa May is sitting down with representatives from Scotland, Northern Ireland and Wales on Monday to hear their concerns about Brexit. 

For the devolved nations, it is the first chance since the seismic vote in June to sit down at a table and talk to the Prime Minister together. 

May has reportedly offered them a "direct line" to Brexit secretary David Davis. It must be a nice change for her to be the big fish in the small pond, rather than the small fish in the big pond that everyone's already sick of. 

Because, when it comes to the EU, the roles of Westminster and other nations is reversed. 

Brexit was small potatoes on the menu of Theresa May’s first European Council summit. It may hurt British pride but the other 27 heads of state and government had far more pressing issues on their plate to worry about.

So, it was an awkward debut Council evening meal of lamb and figs for Prime Minister Theresa May and dinner was served with a large reality check.

As May was later asked at her press conference, why would anyone listen to someone who already has one foot out the door?

Britain is in limbo until it triggers article 50, the legal process taking it out of the EU. Until that happens, it will be largely and politiely ignored.

May’s moment to shine didn’t come until 1am. She spoke on Brexit for “five minutes maximum” and said “nothing revolutionary”, EU sources briefed later.

May basically did that break-up talk. The one where someone says they are leaving but “we can still be friends”. The one where you get a divorce but refuse to leave the house. 

It was greeted in the way such moments often are – with stony silence. Brexit won’t be seriously discussed until article 50 is triggered, and then the negotiations will be overseen by the European Commission, not the member states.

As became rapidly clear after the vote to leave and in sharp contrast to the UK government, the EU-27 was coordinated and prepared in its response to Brexit. That unity, as yet, shows no sign of cracking.

German Chancellor Angela Merkel later damned May with faint praise. She hadn’t said anything new but it was nice to hear it in person, she told reporters.

Merkel, as she often does, had a successful summit. She needed Council conclusions on migration that would reassure her skittish voters that the doors to Germany are no longer thrown wide open to migrants. Germany is one of the member states to have temporarily reintroduced border checks in the passport-free Schengen zone

The conclusions said that part of returning to Schengen as normal was “adjusting the temporary border controls to reflect the current needs”.

This code allows Merkel and her Danish allies to claim victory back home, while allowing Slovakia, which holds the rotating Presidency of the EU, enough of an excuse to insist it has not overseen the effective end of Schengen.

But Merkel’s migration worries did not provide hope for the British push for immigration controls with access to the single market. The Chancellor, and EU chiefs, have consistently said single market access is conditional on the free movement of people. So far this is a red line.

Everyone had discussed the EU’s latest responses to the migration crisis at a summit in Bratislava. Everyone apart from May. She was not invited to the post-Brexit meeting of the EU-27.

She tried to set down a marker, telling her counterparts that the UK wouldn’t just rubberstamp everything the EU-27 cooked up.

This was greeted with a polite, friendly silence. The EU-27 will continue to meet without Britain.

Francois Hollande told reporters that if May wanted a hard Brexit, she should expect hard negotiations.

Just the day before Alain Juppe, his likely rival in next year’s presidential election, had called for the UK border to be moved from Calais to Kent.

Hollande had to respond in kind and the Brussels summit gave him the handy platform to do so. But once inside the inner sanctum of the Justus Lipsius building, it was Syria he cared about. He’s enjoyed far more foreign than domestic policy success.

May had called for a “unified European response” to the Russian bombing of Aleppo. It was a break in style from David Cameron, who is not fondly remembered in Brussels for his habit of boasting to the news cameras he was ready to fight all night for Britain and striding purposefully into the European Council. 

Once safely behind closed doors, he would be far more conciliatory, before later claiming another triumph over the Eurocrats at a pumped-up press conference.

May could point to Council conclusions saying that all measures, including sanctions, were on the table if the Russian outrages continue. But her victory over countries such as Italy and Greece was only achieved thanks to support from France and Germany. 

The national success was also somewhat undermined by the news Russian warships were in the Channel, and that the Brexit talks might be in French.

But even warships couldn’t stop the British being upstaged by the Belgian French-speaking region of Wallonia. Its parliament had wielded an effective veto on Ceta, the EU-Canada trade deal.

Everyone had skin in this game. All the leaders, including May, had backed CETA, arguing the removal of almost all custom duties would boost trade the economy. Belgium’s Prime Minister Charles Michel was forced to tell exasperated leaders he could not force one of Belgium’s seven parliaments to back CETA, or stop it wrecking seven years of painstaking work.

As the news broke that Canada’s trade minister Chrystia Freeland had burst into tears as she declared the deal dead, everyone – not the first time during the summit – completely forgot about Britain and its referendum.

Even as the British PM may be enjoying a power trip in her own domestic union of nations, on the international stage, she is increasingly becoming irrelevant. 

James Crisp is the news editor at EurActiv, an online EU news service.