Bingham Centre for the Rule of Law responds to Government’s legal aid proposals

A couple of weeks ago, I posted a short piece on the Government’s legal aid proposals. The Bingham Centre for the Rule of Law has now submitted its response to the Consultation Paper on legal aid.

In its response, of which I am a co-author, the Bingham Centre argues that the proposed reforms will have a profound effect on access to justice, which is a constitutional right and a key element of the rule of law. We go on to say that the reforms would prevent the poor and disadvantaged from seeking judicial review of government decisions that may deny them their legal rights in areas such as housing, health care, immigration, detention and imprisonment, among others. And we argue that there is a strong public interest in ensuring that government acts in accordance with the law and can be held to account when it does not.

In the conclusion to our response, we say:

The proposed changes to the legal aid system would have a major impact on access to justice for the purpose of holding public authorities to account and securing legal protection of basic rights and interests. In the light of that, the burden on the Government to demonstrate an evidence-based case for the proposed changes is a substantial one. Our clear view is that the Consultation Paper fails to discharge that burden. In particular, the Consultation Paper underestimates the value of judicial review proceedings that do not ultimately clear the permission stage, wrongly assumes that cases in which permission is not granted are necessarily unmeritorious, and creates a significant risk that cases which would clear the permission hurdle may never get that far in the first place. In addition, the proposals concerning prison law and a residence test reflect an impoverished conception of the purposes of public law, which encompass both the protection of individuals vulnerable to exercises of coercive state power and the protection of the public interest in government according to law.

In our constitution, which is characterised by ill-defined demarcations of authority, self-restraint on the part of each branch of Government is a necessity. Among other things, this requires that the other branches should not merely tolerate but actively support, including financially, a legal system that is equipped to subject the executive and all public officials to critical scrutiny. The value of such a system consists not only in the benefits it yields to individual litigants, but in the wider public interest in ensuring that government is subject to adequate legal control. The system is thus a public good whose worth cannot satisfactorily be measured in purely financial terms. It is against that background that the legal aid proposals fall to be assessed—and it is in the light of such considerations that we find the justifications offered in support of those proposals to be wanting in terms of the rule of law.

The full text of the Bingham Centre’s response can be found here.