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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Scottish Labour's defeat to the Tories confirms a political transformation

The defining divide is no longer between left and right but between unionist and nationalist.

It was Scotland where Labour's recovery was supposed to begin. Jeremy Corbyn's allies predicted that his brand of left-wing, anti-austerity politics would dent the SNP's hegemony. After becoming leader, Corbyn pledged that winning north of the border would be one of his greatest priorities. 

But in the first major elections of his leadership, it has proved to be Labour's greatest failure. A result that was long thought unthinkable has come to pass: the Conservatives have finished second (winning 31 seats). For the first time since the 1910 election, Labour has finished third (winning 24). Scottish Labour leader Kezia Dugdale stood on a left-wing platform, outflanking the SNP on tax (pledging to raise the top rate to 50p and increase the basic rate by 1p), promising to spend more on public services and opposing the renewal of Trident. But rather than advancing, the party merely retreated.

Its fate confirms how Scottish politics has been realigned. The defining divide is no longer between left and right but between unionist and nationalist. With the SNP as the only major pro-independence party, the Tories, led by the pugnacious Ruth Davidson, framed themselves as the pro-UK alternative - and prospered. In contrast, Dugdale refused to rule out supporting a second referendum and suggested that MPs and MSPs would be free to campaign for secession. The result was that Scottish Labour was left looking dangerously irrelevant. "Identity politics. Labour doesn't get it," a shadow minister told me. Its socialist pitch counted for little in a country that remains ideologically closer to England than thought. The SNP has lost its majority (denying it a mandate for a second referendum) - an outcome that the electoral system was always designed to make impossible. But its rule remains unthreatened. 

Corbyn's critics will seek to pin the baleful result on him. "We turned left and followed Jeremy's politics in Scotland, which far from solving our problems, pushed us into third," a senior opponent told me. But others will contend that a still more left-wing leader, such as Neil Findlay, is needed. Dugdale is personally supportive of Trident and was critical of Corbyn before his election. Should she be displaced, the party will be forced to elect its sixth leader in less than five years. But no one is so short-sighted as to believe that one person can revive the party's fortunes. Some Corbyn critics believe that a UK-wide recovery is a precondition of recovery north of the border. At this juncture, they say, SNP defectors would look anew at the party as they contemplate the role that Scottish MPs could play in a Westminster government. But under Corbyn, having become the first opposition to lose local election seats since 1985, it is yet further from power. 

In Scotland, the question now haunting Labour is not merely how it recovers - but whether it ever can. 

George Eaton is political editor of the New Statesman.