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.