'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

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.”

Suggested Topics
Voices
A Russian hunter at the Medved bear-hunting lodge in Siberia
Save the tigerWildlife charities turn to those who kill animals to help save them
News
Davis says: 'My career has been about filling a niche - there were fewer short actors and fewer roles – but now I'm being offered all kinds of things'
PeopleWarwick Davis on Ricky Gervais, Harry Potter and his perfect role
News
i100
Sport
Frank Lampard will pass Billy Wright and equal Bobby Charton’s caps tally of 106 caps against
sportFormer Chelsea midfielder in Etihad stopgap before New York contract
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
The first film introduced Daniel Radcliffe to our screens, pictured here as he prepares to board the train to Hogwarts for the first time.
booksHow reading Harry Potter helps children grow up to be gay-friendly
Arts and Entertainment
A scene from Aladdin is performed at the Tony Awards in New York in June
theatreBrit producer Lythgoe makes kids' musical comedy a Los Angeles hit
Sport
Usain Bolt of Jamaica smiles and shakes hands with a competitor after Jamaica won their first heat in the men's 4x100m relay
sport
News
Chancellor George Osborne, along with the Prime Minister, have been 'complacently claiming the economy is now fixed', according to shadow Chancellor Ed Balls
i100... which is awkward, because he is their boss, after all
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

(Senior) IT Support Engineer - 1st-3rd Line Support

£40000 per annum: Ashdown Group: A successful IT service provider that has bee...

Wind Farm Civil Design Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principal Marine Mechanical Engineer

£60000 - £70000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principle Geotechnical Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Day In a Page

Save the Tiger: Meet the hunters tasked with protecting Russia's rare Amur tiger

Hunters protect Russia's rare Amur tiger

In an unusual move, wildlife charities have enlisted those who kill animals to help save them. Oliver Poole travels to Siberia to investigate
Transfers: How has your club fared in summer sales?

How has your club fared in summer sales?

Who have bagged the bargain buys and who have landed the giant turkeys
Warwick Davis: The British actor on Ricky Gervais, how the Harry Potter set became his office, and why he'd like to play a spy

'I'm a realist; I know how hard this business is'

Warwick Davis on Ricky Gervais, Harry Potter and his perfect role
The best swim shorts for men: Bag yourself the perfect pair and make a splash this summer

The best swim shorts for men

Bag yourself the perfect pair and make a splash this summer
Has Ukip’s Glastonbury branch really been possessed by the devil?

Has Ukip’s Glastonbury branch really been possessed by the devil?

Meet the couple blamed for bringing Lucifer into local politics
Dress the Gaza situation up all you like, but the truth hurts

Robert Fisk on Gaza conflict

Dress the situation up all you like, but the truth hurts
Save the tiger: Tiger, tiger burning less brightly as numbers plummet

Tiger, tiger burning less brightly

When William Blake wrote his famous poem there were probably more than 100,000 tigers in the wild. These days they probably number around 3,200
5 News's Andy Bell retraces his grandfather's steps on the First World War battlefields

In grandfather's footsteps

5 News's political editor Andy Bell only knows his grandfather from the compelling diary he kept during WWI. But when he returned to the killing fields where Edwin Vaughan suffered so much, his ancestor came to life
Lifestyle guru Martha Stewart reveals she has flying robot ... to take photos of her farm

Martha Stewart has flying robot

The lifestyle guru used the drone to get a bird's eye view her 153-acre farm in Bedford, New York
Former Labour minister Meg Hillier has demanded 'pootling lanes' for women cyclists

Do women cyclists need 'pootling lanes'?

Simon Usborne (who's more of a hurtler) explains why winning the space race is key to happy riding
A tale of two presidents: George W Bush downs his paintbrush to pen father’s life story

A tale of two presidents

George W Bush downs his paintbrush to pen father’s life story
Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover

The dining car makes a comeback

Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover
Gallery rage: How are institutions tackling the discomfort of overcrowding this summer?

Gallery rage

How are institutions tackling the discomfort of overcrowding this summer?
Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players

Eye on the prize

Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players
Women's rugby: Tamara Taylor adds fuel to the ire in quest to land World Cup

Women's rugby

Tamara Taylor adds fuel to the ire in quest to land World Cup