C. E. Lord OBE

The Ministry of Justice is in trouble. Its finances are a mess and it is struggling to find savings across its responsibilities for the Courts & Tribunals Service, Prisons, and Probation. But unlike other departments of state, the ‘overspend’ is not due to profligacy by ministers of whatever colour nor to lack of budgetary control by officials, it is simply the cost of providing a fair, accessible, and transparent system of justice.

Despite this, the Treasury are nonetheless insisting on extracting their pound of flesh by way of substantial cuts to the MoJ, and ministers, not least the Secretary of State and ‘Lord Chancellor’ Chris Grayling, seem to be enjoying taking the knife to the justice system, in some cases delivering political retribution  to what the Daily Mail has doubtless called an ‘out of control Judiciary’, which has failed to toe the line on key policies.

It is presumably because the Judiciary cannot be controlled that ministers have decided to undermine the system from the other end by restricting access to it for those whose cases they have deemed are ‘meritless’. And surprise-surprise, those categories of cases which are presumed to be so without merit that they no longer attract Legal Aid support include:

• the majority of family cases where couples are divorcing and sorting out living arrangements for their children, unless there is proven domestic violence;
• advice on most employment and education law;
• personal injury and some clinical negligence cases;
• most debt and housing problems; and – of course – our old favourite
• immigration.

And it is on immigration cases where the latest cut, restricting access to Judicial Review, will have the greatest impact. Yet again, Secretary Grayling has talked of ‘driving out meritless’ JR applications, saying that his reforms will weed out the “weak and frivolous” cases while still enabling genuine challenges.

Surely though, it should be for the Judiciary, not a minister, to determine which cases are with and without merit. And isn’t it also interesting the number of immigration related JR applications which aren’t heard not through lack of merit, but actually because the UK Borders Agency has realised that they haven’t got a leg to stand on.

My friend Julian Norman, an immigration barrister, in her masterful Guardian article yesterday (http://www.guardian.co.uk/commentisfree/2013/apr/23/chris-grayling-judicial-reviews) summed it up perfectly:

“If Grayling genuinely wanted to reduce the number of judicial reviews, he would start first by improving the quality of UKBA decisions, then by reintroducing some discretion on the part of the caseworkers. To stamp out people’s right to challenge unlawful or unfair decisions without first addressing why they are forced to do so is truly Alice in Wonderland thinking. In fact, I think it might be open to judicial review.”

The British system of justice isn’t perfect. But it is fair, open and transparent. At least it was until the Government started tinkering with it in the interests of deficit reduction.  If we are truly an equal society, if we believe in social inclusion, then we need a judicial system for all, not just the privileged few.