A person steps off an aeroplane, a train or a ship. They set foot onto British soil, entering this country legally and in good faith. At what point do they become entitled to the same basic legal rights as a UK resident? At what point may they make a claim for Legal Aid?
Chris Grayling, the Lord Chancellor and Secretary of State for Justice, believes they should have to wait at least one year. He successfully drove a measure to that effect through the House of Commons, invoking the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Mr Grayling, the first leader of our judicial system in 400 years to have no legal background whatsoever, argued that this was a necessary move which would ensure public confidence in Legal Aid spending. Perhaps among some sections of the public it would. But should our laws, and the fundamental rights of those who visit these shores, be truncated to please those sections of the public?
Yesterday a specially convened Divisional Court, headed by Lord Justice Moses, ruled emphatically that they should not.
In ruling that Mr Grayling exceeded his statutory powers in devising the proposals and describing them as ‘unauthorised, discriminatory and impossible to justify’, the Court drew a clear line. Sweeping, potentially discriminatory changes are not to be ushered in through a legislative back door on cost-cutting grounds.
Mr Grayling might reflect that public confidence in Ministry of Justice spending, particularly relating to citizens born outside the UK, has taken a severe beating over the past two and a half years as a direct result of the Ministry’s own decisions. The appointment of a single agency to manage all courtroom interpreting services, devised as a cost-cutting exercise, brought chaos, spiralling costs and countless delays to trials throughout the UK almost from the moment the contract began in January 2012. With this in mind, any perception among the general public that non-natives are costing them money and taking advantage of their system hardly seems fair, and surely should not be pandered to.
The Divisional Court would presumably agree. It made clear its distaste for proposals that would deny support to vulnerable groups highlighted in specific, detailed examples.
Do we really want to deny basic support to the families of children with special educational needs, or to those individuals who lack mental capacity and need the help of others in any legal situation, or to those resident abroad who have been subject to serious abuses at the hands of UK forces?
Is that our law?
Is that our country?
If we see this as a point worth fighting for, then when Parliament won’t fight for it we should be thankful that the judiciary and the legal profession will. In this case we should be particularly thankful to the Public Law Project, who brought the test case, to John Halford and Stephen Grosz of Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.
And of course to the Divisional Court. This was Lord Justice Alan Moses’s final ruling before stepping down from the bench. Many of us would argue that it’s a fitting and impactful farewell, and a fine legacy. Never afraid to argue against political action that he viewed as unworkable or unjust, he has used humour as a powerful weapon. Last year he wrote a spoof application to become the next Lord Chief Justice including a 2,000 word essay which eviscerated the government’s legal aid proposals. He jokingly suggested that to save money judges should compete to produce the most judgments in the shortest time, and solve funding problems by accepting sponsorship from companies such as L’Oréal, Silk Cut and Virgin.
We can only hope that what a wise and principled man suggested in jest will never be embraced in seriousness by those more foolish.