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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Why hasn’t British Asian entertainment built on the Goodness Gracious Me golden age?

It is 20 years since the original radio series of Goodness Gracious Me aired. Over two decades, the UK media portrayal of Asians hasn’t used its success to evolve.

Save for a handful of special one-off episodes, Goodness Gracious Me hasn’t occupied a primetime TV slot for nearly two decades. Yet still it remains the measuring stick for British Asian comedy.

The sketch show, which transitioned seamlessly from radio to screen (it started as a BBC Radio 4 series in 1996), has stood the test of time and is as much a staple of modern British Asian culture as Tupperware or turning up an hour late.

What Goodness Gracious Me did so expertly was to take a set of serious issues facing first, second and now, I suppose, third generation migrants, and turn them on their heads. 

In making light of the pressures of academic expectation or family drama, Goodness Gracious Me wasn’t playing down the poignancy of such concerns; it was raising awareness and combatting their uglier side with humour.

It offered resonance and reassurance in equal measure; it was ok to have an embarrassing uncle who insisted he could get you anything much cheaper, including a new kidney, because other people like you did too.

That Goodness Gracious Me was broadcast on a mainstream channel was also a victory for minorities; it made us feel integrated and, perhaps more importantly, accepted. Against the backdrop of Brexit, what wouldn’t we give for that treatment now?

Really, though, the jewel in Goodness Gracious Me’s crown was its willingness to recognise diversity within diversity. It is a relic of a departed era when discourse on TV around Asians was different, when the broad church of that term was truly represented, rather than reduced to one catchall perception of British Muslims.

Goodness Gracious Me offered insight into the experiences and idiosyncrasies – religious or otherwise – of Indians, Pakistanis, Bangladeshis, Sri Lankans and even English people. It’s what made it so accessible and, in answering why subsequent programmes have failed to reach similar heights, this is a good starting point.

Without the flexible sketch format, the modern Asian sitcom Citizen Khan has struggled to cover multiple topics, and, by being specifically about a Muslim family, it leaves many non-Muslim Asians wondering: where’s ours?

I hasten to add that I feel plenty of sympathy for the British Muslim community, hounded by tabloid headlines that attack their faith, but it would be disingenuous to suggest that non-Muslim Asians are sitting pretty in 2016 and don’t need a similar level of support in terms of positive public perception.

The current volume of British Asian media products is fairly good. The BBC has its dedicated network, The Good Immigrant essay collection was one of the outstanding reads of the year, and we still have champions of comedy in Romesh Ranganathan and Nish Kumar.

But I think ultimately it comes down to the broadness of appeal, rather than the quantity of products. Goodness Gracious Me was not only able to engage the full spectrum of British Asia; it transcended its target audience and was on terrestrial TV.

The British Asian media on offer now is up against it, released as the country’s attitude towards foreigners completes a full circle back to the same suspicion my grandfather encountered in the Sixties.

Fewer outlets are willing to explore the stretch of what it means to be Asian, either by denying it due consideration in mainstream shows or by peddling their own monolithic observations. The BBC Asian Network, for example, is laudable in its existence, but does little to engage the young Asians who aren’t into techno spliced with Bhangra.

The mainstream representations of Asians in Western film and television that are commissioned, meanwhile, are irritatingly limited and sometimes inaccurate. In an article for the Guardian last year, Sara Abassi lamented the disproportionate appetite for “gritty post-9/11 films about conservative Pakistani families”, and that the researchers of American series Homeland failed to realise that the national language of Pakistan isn’t Arabic.

When I interviewed the actor Himesh Patel for the No Country for Brown Men podcast, he suggested that the answer to re-establishing Asians in mainstream media, both here and in America, was three-fold. The first challenge to overcome was for outlets to acknowledge that not all Asians fit the same religious or cultural profile; the second was to be open to placing Asians in non-Asian specific products to better reflect their presence in society.

Patel, who is best known for his portrayal of Tamwar Masood in the soap opera EastEnders, made his third recommendation based on this role. He felt that characters should be written with only their personality in mind, making the ethnicity of the actor who plays them incidental. Tamwar’s awkwardness but underlying kindness, Patel said, was what defined him – not his skin colour.

Goodness Gracious Me, though a primarily Asian show and a comedy at that, actually taught some salient lessons about representation. It succeeded in providing a window into a multiplicity of cultures, but at the same time wasn’t a total slave to the politics of identity – several of the 100-plus characters needn’t have been Asian at all. It was reflexive to the times we lived in and a perfect advertisement for empathy. That is why we still talk about it today.

Rohan Banerjee is a Special Projects Writer at the New Statesman. He co-hosts the No Country For Brown Men podcast.