Spectator December 2104
Of all the reasons to wish this government gone, Chris Grayling is the largest.
He is shutting poor and much of the working and lower-middle class out of the justice system. In matters as fundamental to a good life as housing, employment protection and freedom from domestic violence, he has placed them beyond the rule of law.
If they go to court, they have no one to plead their cause, while their landlord or employer or ex-husband can hire lawyers to outwit them. The legal system intimidates most potential claimants. They are too frightened and confused to think of representing themselves. I suspect many middle-class graduates are as nervous. Most don’t and won’t go to court, and what were once strong cases pass by in silence.
Since the Ministry of Justice whacked up the fees for employment tribunals the number of individuals bringing claims fell by 70 per cent. You have to be a conservative of the most mulish kind to believe that none or even most of these gagged people did not have an argument worth hearing; that in a Britain where employers can impose zero-hours contacts and workplace censorship there are 70 per cent fewer unfair dismissals now than a year ago.
The government is also restricting the rights of the citizen to test the power of state with judicial reviews of the legality of its actions. Not nearly enough has been made about hypocrisy on display here; about Conservatives and Liberals’ total failure to connect the comforting stories they tell about themselves to the reality of their measures.
In theory, Conservatives and Liberals are all for individual liberty; in practice, they make the over-mighty state mightier still.
Chris Grayling’s judicial review ‘reforms’ have the same effect as his legal aid ‘reforms’. He is making the state the equivalent of a rent-racking landlord or despotic employer: a power too few can contest.
Grayling is fighting a class war in all but name. He is putting the convenience of the bureaucracy before open government and the rights of the citizen. Those who need legal redress the most – who have neither the savings nor the career prospects to cope with the financial consequences of losing a home or a job – are the very people he is hitting the hardest.
Ministry of Justice civil servants and Grayling himself are working hard to deny the obvious. The strain is starting is starting to show.
At the Public Accounts Committee, MPs choked when a civil servant called Catherine Lee announced that after all she and Grayling had done, she still bore the Orwellian title of ‘director General, Law and Access to Justice Group’. When the chairwoman asked whether she would be better described as an inhibitor of justice, the permanent secretary one Ursula Brennan, intervened:
Ursula Brennan: It is inappropriate to ask Catherine Lee about whether her job is to inhibit access to justice.
Chair: It is her job description.
Ursula Brennan: Her job description is to implement the policies of the Government, including in relation to legal aid.
Chair: She comes to us as the person with the job description of “access to justice”.
Ursula Brennan: It is completely inappropriate to ask her whether she is the person who is responsible for inhibiting access to legal aid.
I am sorry to sound old fashioned. MPs may not be much to look at and the Commons may be a thing of shreds and patches. But they are all we have. Civil servants have no right to tell MPs what questions they can and cannot ask, particularly when they use that prim, waffly condemnation ‘inappropriate’, which guilty prigs always deploy to smother uncomfortable truths.
Grayling himself had to admit that he had misled MPs – ‘inadvertently’, of course. Opposition complaints about the coalition wanting to free the government from the scrutiny were groundless, he had said. His bill on judicial review clearly stated that judges could still act in ‘exceptional circumstances’. His bill did no such thing, as he conceded when cornered. The Lords sensibly concluded that Grayling was either a fool or a liar and sent the measure back to the Commons so that duped MPs could consider it again.
Today, another lie – doubtless inadvertent – will be tested in court. The Ministry of Justice had promised that it would exclude cases of domestic violence from its legal aid cuts. Whatever hardmen poses David Cameron and Nick Clegg like to strike, they wanted the public to know that they recoiled at having the blood of battered wives on their hands.
As it turns out their ‘concession’ gives nothing to nearly 40 per cent of allegedly abused women. As one said:
‘The law leaves me in a situation where my ex can come round when he wants to – text me, phone me – and as long as he doesn’t swear, make threats or hit me I can’t stop him. I and my kids are constantly frightened, living in lock down conditions and there is nothing we can do. It’s hard to keep going. I have been and am suicidal. I can’t cope. There is no help.’
If it had to save money, a serious government would turn British judges into continental investigating magistrates. They do not need expensive lawyers to place the facts before them but manage cases and evidence themselves. The costs of English law would fall if we abandoned adversarial hearings and judges with no power to compel the production of evidence.
I am rather attached to the Anglo-Saxon legal system, but radical reform is preferable to locking out large sections of the public. But radical reform would threaten London’s international legal industry. The coalition won’t touch it. Instead, Grayling and his creatures mislead MPs, the judges and the public. They engage in squalid deceptions rather than admit we now have a legal system where access to justice depends on access to money.
If you don’t have the money, you won’t get the justice. It is that simple and that disgraceful. This government’s legacy will be to leave behind a screen of poverty, which few can penetrate, hundreds of thousands of people suffering without hope of redress.