Leading article: Misplaced means-testing

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A Government intent on austerity would rightly conclude that there is no reason it should pay the legal bills of the rich. But the move to limit the provision of free legal representation to those who have been arrested and can prove they can't afford their own solicitor, is a very bad one.

Someone arrested and detained for questioning is in a peculiarly vulnerable position. They face, at the very least, a major disruption to their lives – or at worst, a permanent loss of liberty. Those who have never before undergone such an ordeal are often unable to think clearly or respond in an appropriate manner. Access to a lawyer at such a time should be a fundamental right.

But Clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill, voted through by Tory and Liberal Democrat MPs this week, gives the Government the power to introduce regulations to means-test such access. An arrested person needs a lawyer to discuss their arrest and the gravity of the charges laid against them. They do not want at their first meeting their solicitor to ask them how they are going to pay. Means-testing for legal bills might be a reasonable proposal later in the proceedings. But for those first two hours at the police station, access to a solicitor should be an automatic right.

Ministers may insist they are not actually proposing means-testing, only introducing "flexibility to make regulations to apply means-testing if it were considered appropriate to do so in the future". But if something is a bad idea now, while the full scrutiny of Parliament is upon it, it will be an equally bad idea when a future minister quietly introduces regulations to implement it. Nor is it reassuring that it will be the newly created Director of Legal Aid who will decide on who gets a free lawyer "having regard to the interests of justice". The interests of justice are clear enough. That is why the present system was introduced 25 years ago following a series of abuses by the West Midlands and Metropolitan police forces in the 1970s and 80s that led to grave miscarriages of justice. The automatic right to a solicitor is a bulwark against the possibility of police abusing their power. Clause 12 should be thrown out at the next reading of this Bill.

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