Rule of law arguments are often rather complacently used by lawyers and judges in debates about legal aid and the like; a carapace under which sits the idea that the dusty world of law should rest untouched by the world of politics and economics. Not always though. It is equally dangerous for politicians to ignore the value of legality. There is just such an interesting argument brewing around the latest round of legal aid cuts. The economic case around making cuts to judicial review for prisoners, borderline cases (which are otherwise in the public interest) and those who don’t meet a residency test (immigrants not yet able to claim lawful residence) has been forensically critiqued by Nick Armstrong of Matrix Chambers. On Armstrong’s analysis, the economic case does not stack up. The Lord Chancellor appears unperturbed. His position is ideological: certain rights of prisoners should not be considered by the courts. They should only be protected by complains and an Ombudsman, not (ever?) by a Court. The implication, if we join the dots, is that the Government can spend more money where it wants to deny rights. This is what passes for a priority in the topsy turvy world of legal reform. The fragility of the economic case and the paucity of the intellectual case appears to have reached, for example, Lord Hope, the much admired, recently retired Supreme Court Justice. Of the proposals (see here for the House of Lords debate) he says this:
it is the weakest, the most vulnerable and, let us face it, the most unpopular who are at risk of being unprotected. For them, the rights that are at issue here are the most basic rights of all, and the savings are at risk of being overtaken many times over by increased costs.
Lord Hope’s request for primary legislation is robustly made and, interestingly, he threatens resistance in the Lords to delegated legislation. Chris Grayling may live to regret the admission in Select Committee evidence about the ideological component to his thinking. The Ministry of Justice will try to present this as a judgment about an appropriate dispute and oversight mechanisms (complaints vs Ombudsman vs courts), but they may now face an up hill battle to convince the courts of their good-faith, and ultimately the legality of what they are attempting. It is a little while since I scrutinised Article 6 obligations; but limiting access to the courts on the grounds of suitable alternatives and economic grounds can be legitimate but ideology especially ideology that singles out disadvantaged groups is going to receive the kind of judicial attention that only reckless Governments really welcome. Lord Hope put it diplomatically:
The Government are right to seek to target their limited resources on those cases which really do justify legal aid and on those people who need it, but that requires the exercise of judgment based on sound research and open-minded consultation. There is one cardinal principle which until now has always been respected.
It is set out in Section 1 of the Constitutional Reform Act 2005, to which the noble and learned Lord, Lord Irvine of Lairg, referred: the constitutional principle of the rule of law and the Lord Chancellor’s role in relation to that principle.
An interesting question will be whether the ideology argument can back-tracked from sufficiently to persuade judges that the Government proposals are Article 6 compliant; whether the proposals will be reformulated – and we should remember here the dynamics of coalition – or abandoned; or whether the Government will engage in a deliberate confrontation with the Judiciary. Lord Beecham puts the central point with particular force, drawing on the words of Kipling. Are we to have, “lesser breeds without the Law”? Politically that plays well in certain quarters; legally it is a position toxic enough to be untenable.