'It will create an underclass': Government lawyers warn Justice Secretary Chris Grayling over proposed 'unconscionable' changes to legal aid

Group of 145 barristers sign open letter setting out fears about the reforms
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The Government’s own lawyers have condemned its proposed changes to legal aid as “unconscionable”, warning the Attorney General that the reforms will “create an underclass” in Britain with no access to justice.

In an open letter to Dominic Grieve, 145 Treasury Counsel barristers set out their fears about the reforms. It is believed to be the first time that the Government’s own legal advisers have publicly criticised one of its policies.

In the letter, the lawyers say the planned changes making it more difficult to bring judicial reviews will mean that society’s most vulnerable will be “most likely to be at the sharp end of the exercise of government power”. They add that reductions in the availability of legal aid would make access to the courts impossible for some.

“Judicial review is important, not because such individuals have more rights, but because they have fewer,” the letter read. “To deny legal aid altogether to such persons, so that even the minimal rights provided to them by the law cannot be enforced, is in our view unconscionable.”

The Ministry of Justice wants to increase the cost of bringing judicial review applications, while cutting legal aid fees and awarding contracts through competitive price tendering. It hopes to cut the legal aid bill by around £220m.

Chris Grayling, the Justice Secretary, announced last month that judicial review applications would only receive legal aid funding once a judge has agreed the case is strong enough to proceed to a full hearing.

Under the proposals, access to civil legal aid will be restricted to those who can prove that they have been living legally in the UK for at least a year. On this point, the letter says: “We have particular concerns about the proposals to introduce a residence test for civil legal aid. This risks creating an underclass of persons within the UK for whom access to the courts is impossible.”

Lawyers contacted by The Independent said they could not remember another time that Treasury Counsel - barristers appointed to act for the Crown or Government departments - had staged such an intervention.

“In the past, barristers and solicitors of all persuasions – as well as judges – have been vigorously warning the public that the legal cuts by Chris Grayling are going to decimate the criminal justice system,” said John Cooper QC, who has led the legal profession’s opposition to the reforms.

“Now, for the first time, we have the Government’s own senior barristers telling them that, if these cuts go ahead, it could be the end of a fair criminal justice system; one of which we can be rightly proud.”

Another part of the letter reads: “We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular. Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.”

The Treasury Counsel’s misgivings come just days after family law experts warned that changes to legal aid in divorce cases would put children in violent homes under greater risk, and judges said that stricter rules on aid for prisoners would lead to riots in the prisons.

In May, three lawyers argued that the residency tests proposed as a condition of being allowed to bring judicial review under the reforms would be unlawful. “It would not survive scrutiny given its nature and impact, as well as the paucity of the reasoning put forward, and the absence of anything approaching a proper assessment of its implications,” wrote Michael Fordham QC, Ben Jaffey and Ravi Mehta of Blackstone Chambers.

Lawyers on the Attorney General’s Panel of Counsel are not paid via Legal Aid, but directly by the tax-payer, meaning they have little vested interest in seeing the reforms defeated.

A Ministry of Justice spokesman said: “At about £2bn a year we have one of the most expensive legal aid systems in the world. Given the major financial challenges faced, we have to make sure that we are getting the best value for every penny of taxpayers’ money spent.

“Our proposals would not prevent legal aid being granted for future judicial reviews, but we are concerned that currently legal aid is being used to fund weak JRs, which do not receive a court’s permission to proceed, and so have little effect other than to incur unnecessary costs for the taxpayer. We also believe it is right that those being provided with civil legal aid should have a strong connection to this country.”