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Michael Gove’s legal aid u-turn: olive branch or fig leaf?

The Justice Secretary is restoring relations with the legal profession ahead of his great project, the British Bill of Rights

Michael Gove has announced yet another welcome u-turn on Ministry of Justice policy that will have an impact on the quality of our criminal justice system.

Or from another point of view, Michael Gove is running scared, having been backed into a corner by the threat of litigation launched by law firms against his department’s flawed tender process.

The proposal to restrict the number of law firms who undertake criminal defence work in police stations and magistrates courts, via the “dual-contracting” system, devised by Gove’s predecessor Chris Grayling has been scrapped. Grayling’s proposal would have meant that around only 500 law firms would have been able to undertake this type of work, compared to the current number of approximately of 1,600 providers. A commitment to an 8.75% cut in fees (following an 8.75% cut in fees last year) has also been delayed.

What does this mean for the public? In practical terms, the MoJ's criminal defence market-tinkering reforms would have meant should you find yourself unfortunate enough to be arrested and appearing in a police station or magistrates court, there would be a severe limitation on your choice of lawyer. The proposed cuts would also have meant that your budget-constrained lawyer would have even more severely limited time, research and investigative resources to look into your case and represent you. A stark fact if you are facing time in jail, even more so if that prospect is on a wrongful basis.

For those outside of the legal sector, the significance of these reforms may not be fully understood, as it has a very low impact on the majority of people’s everyday lives. For those inside the criminal defence sector itself and the wider criminal justice system, which has withstood a barrage of cuts over many years from successive governments, the difficulty of maintaining a financially viable practice rumbles on.

State-funded criminal, and perhaps civil justice, are not electoral priorities like the NHS and are therefore very liable to swingeing cuts. However, Gove’s decision does bring a range of intriguing political outcomes.

The heroes

The work of lawyers and law firms within the Justice Alliance, Law Society, Criminal Bar Association, legal charities and many many others by way of protesting, striking (albeit in effect not name), litigating, and lobbying, has been vindicated. The undoubted pressure and counsel of the senior judiciary behind the scenes has no doubt had a big effect too.

The threat of judicial review and scrutiny of the MoJ’s decision-making process of the dual-contracting system also shows that far from the recent cries of ambulance-chasing, taking the government to court is a highly effective way of holding it to account.

The legal profession still has a long way to go though in properly engaging the population on what it does and why it is important. Lawyers themselves know there has always been, and still is, an imbalance between intellectual navel-gazing and public-engagement. This is surely the ongoing duty of any sector in a representative democracy that relies on public-funding to exist. Unless people see and understand more of the social and structural value of the legal aid sector, it will continue to suffer the chill of the political wind.

The villain

It is hard to read this as anything other than another humiliation for Leader of the Commons, Chris Grayling. His MoJ successor Gove, despite tossing platitudes in Grayling’s direction, has now overturned his controversial and unnecessarily divisive measures on prisoner’s books, the criminal courts charge, and Just Solutions International, a commercial arm of the MoJ bidding to provide prisoner services to Saudi Arabia.

It remains to be seen if the UK votes to remain in the EU, but if Osbornites are rewarded for loyalty, then this toxic MoJ legacy coupled with the redundant need of a Eurosceptic presence in cabinet may see him consigned to the backbenches.

The man of the hour?

Gove, in justifying his decision by deference to savings made by the MoJ to date, the merits/cost implications of the impending litigation by law firms, and the offer of an advisory council of barristers and solicitors, has offered an olive branch to the legal profession. But why?

The cynical may suspect a political fig leaf in that parking these market reforms represent the ideal opportunity to disengage from an inherited, tiresome and tawdry micro-legal debate, and focus on gaining credibility on the impending macro-legal issue, the British Bill of Rights. The BBR is surely much more of a Govean project, with the prospect of shaping the British constitution by incorporating it under his breadth of intellect and getting it through the numerous obstacles with the skill of his political-maneuvering.

The BBR proposals, promised soon, also provide the opportunity for this government to deliver a PR job on rights that the Human Rights Act failed to deliver. This would be even more useful if the BBR reconfigured UK courts’ relationship with Strasbourg but were spun as “bringing rights home” in the run up to the EU referendum (even though the EU and ECtHR are legally distinct, in the public’s mind they are linked/the same).

Whether Gove is creating space for the acceptance of his BBR remains to be seen but he would do well to remember that the real significance of macro-legal changes to people’s rights will always ultimately be measured by the effect to which they can be accessed. The Lord Chief Justice’s warnings that more and more people are being forced to represent themselves in court due to legal aid cuts outline the extent of that problem that exists. And you can’t blame Strasbourg for that.

Sashy Nathan is Director of Advocacy at 89up. He is a civil liberties lawyer with a background in defending activists and politically-sensitive criminal cases at Bindmans LLP.