Comment: Chris Grayling tried to undermine our democracy – and only the courts stopped him
By Bill Waddington
This week the high court struck down the government's 12 month residency test for legal aid on the grounds that it is discriminatory and unlawful. It's yet another nail in the coffin for Chris Grayling's misguided, destructive and shambolic legal aid reforms.
With each and every growing controversy, we have seen that the government's changes to the criminal justice system have been rooted in the panacea of cutting costs, with little regard to preserving the integrity and the fundamental principles of equality before the law and access to justice that sit at the heart of our legal system.
This ruling has shone a bright light on the contradiction between why the government claims it is reforming legal aid and its true motivations.
Before the introduction of the residency test, the Ministry of Justice (MoJ) described the Legal Aid, Sentencing and Punishment of Offences Act (Laspo) as "targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds".
In the case before the high court there was no dispute as to the purpose of the residency test. It had nothing whatsoever to do with need or an order of priority of need. It was entirely focused on reducing the cost of legal aid. The court decided that it unlawfully discriminated against "foreigners" in three key constitutional values: access to justice, equal treatment before the law and the rule of law itself. In other words, the bedrocks of the UK's justice system and indeed our entire democracy.
Make no bones about it. This case is Chris Grayling' Germany versus Brazil moment – he fought hard and lost decisively. Though Brazil actually managed to score once whereas he couldn't even manage that. No justice secretary in recent times has received such a kicking from three such distinguished judges.
Yet as if gluttonous for further punishment, Grayling intends to appeal, despite the obvious futility of such an action in the face of such an uncompromising rejection. One may ask how, in light of the apparently all-consuming need to cut costs, such a frivolous action can be justified. Indeed, one may further ask what has happened to straightforward common sense? The appeal can and should be stopped immediately by someone having a quiet word in the justice secretary's ear and simply asking "have you taken leave of your senses?" His law has been judged beyond his powers, unlawful and discriminatory. Yet he remains impervious to the ever-growing chorus of opposition.
Grayling has suffered a heavy loss. Yet many a phoenix has risen from the ashes of such an emphatic defeat. He now has an opportunity to show some humility, and come to the table with legal professionals to re-examine the reforms to the legal aid system before any further damage is done.
Bill Waddington is chair of the Criminal Law Solicitors Association (CLSA).
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