RentaQuill: The Death of the Magna Carta

The Death of the Magna Carta

Magna Carta proclaimed 37 articles that were to be ‘kept in our Kingdom of England forever’. It may have seen a seal, not a signature, at Runnymede but take a guess how many of the original statutes still apply today…

Just three. At the moment, a petty tridominium still has force majeure and, woeful as it is, the greatest and noblest of those tenets is about to be repealed. When the proposed model for price-competitive tendering in our modern-day justice system comes into force, this government will – effectively – use a mis-directed blunderbuss to blow a hole in the carta libertatum of our nation’s greatest premise, that of justice for all.

Over the last 200 years we’ve rescinded the powers of 34 tenets for good cause and, for the most part, that’s not been a bad thing: when it comes to things like Knights not being obliged to pay lowly castle guards if the good Sirs are willing to rock up for night duty instead… I’m all for unilateral reform and I’m sure you are, too.

But listen. Listen carefully to the words breathing life into Clause 29: ‘No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him] but by lawful judgment of his Peers or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.’

“We will sell to no man…”

There. Right there, that’s the one – that’s the coup de foudre in the margins of the Magna Carta; that clause, guaranteeing equitable access to justice for all. Technically, yes, ‘we will sell to no man’ intended the abolition of fines demanded by King John; ‘will not deny’ referred to the stopping of suits and the denial of writs; ‘delay to any man’ meant delays caused by counter-fines of defendants or regal prerogative – but the essence of the epithet was clear: for over 800 years, we’ve been afforded the right to seek justice without impediment born of financial limitations. Never mind unwritten rules, men fought and died for this ideal. The Magna Carta enshrined a principle that the British [sic] would never prevent their fellow countrymen from being fairly represented in due legal process, just because they couldn’t afford a decent brief.

And now… now, our esteemed Lord Chancellor and Secretary of State for Justice wants to change all that with a proposal that will, allegedly, decimate the financial burden of legal aid. Ostensibly, under his proposals for PCT (that’s price-competitive tendering to you), Chris Grayling has announced that ‘quality legal representation will still be available to all who need it’. A purport of remarkable gravitas, prima facie, were that to be the certain outcome of his case. You can see it coming, can’t you.

Sad but true, in a coup de grâce that’s reminiscent of martial extremes, Grayling – or #failingGrayling as he’s known in social circles – has suggested that a bidding war should be the business model on which criminal litigation services are provided to needy boys and girls. Legal aid be damned: alleged ne’er-do-gooders will be fobbed off with a Hobson’s Choice of duty solicitors, all of whom have been through a rigorous quality check. Ha ha.

He whose employer bid the lowest will deal with the detainee, that’s the sum of it. Incidentally, would you take a 17.5% paycut? No, I wouldn’t either. But while a bargain basement contract will potentially secure you unaided legal aid work for 3 to 5 glorious years, all bids must be at least 17.5% less than existing service rates…

“Stables. Doors. Locked and Bolted.”

GS4; Stobart; Tescos; the Co-op; Branson hasn’t put his hat in the ring but you’ll hear a few familiar names being bandied about over the next few months, jostling for the management of these contracts countrywide. They’ll be defined by geographical allocation –

“So if there’s more than one lucky provider in your area, what happens then?” Ah. Glad you brought that up. Believe it or not, the ‘Transforming Legal Aid’ consultation paper canvassed opinions on four suggestions as to ways in which the skint-as-a-flint common man would, in future, be allocated judicial representation. Come the hour, cometh the manner in which we get a brief: Grayling’s proposals infer no access to legal aid for anyone with a combined household income over about £37,000 a year.

After a punch-up in the Pig and Whistle then, your allocation could be on a case by case basis, which means ‘pot luck’ for the most part. It might be decided by the day of the month of your birth – heaven forfend you’re cared for by the miserable sucker who could only afford February 29th. It could be selection by surname or initial, so anyone bidding for cases will ascribe higher value and therefore a lower bid to Dave Smith than Zoe Xavier… or you could simply be assigned to ‘the provider on duty’ whomsoever he, she or it may be.

In terms of securing a high quality representative to plead your case, if you’re broke then, at this point, you may just as well throw rock, paper and impale yourself on the scissors.

“It’s your honour, your Honour.”

And what do the protagonists themselves have to say about it? Quite a lot. They’re a bit miffed and, not only are they correct in their floccinaucinihilipilification of the Lord Chancellor’s chrematistic proposals, they’re also having the decency to bleat very little about the projected caps and reductions in fees. Instead, they’re focusing on the lack of probity that will result from this farce.

As the Law Gazette reports, the Judicial Executive Board – 10 of our finest wig-wearing wags – surmises there could be a widespread collapse of the criminal judicial system, transferring costs and deferring them rather than saving money in any way. Economies of scale be damned: logistics do come into play – how will an adequate service be maintained if a ‘winning’ provider has minimal coverage in remote areas? Will interpreters still be provided? If a bludger can’t afford a defence, will they just have to become litigants in person instead?

Trust me on that one: the last thing our justice system needs is more LiPs running around like headless chickens, trying to interpret veritable cornucopias of verbal legerdermain such as this: ‘Rule 28.2 provides that subject to rule 28.3 of the FPR and to paragraph (2) of rule 28.2, Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in proceedings with the modifications listed in rule 28.2(1)(a) to (d).’ Love ‘em or hate ‘em, a good brief earns his fee, and unilateral access to that dedication, experience, knowledge and ability to recall tedium ad infinitum … is what pretty much sets us apart from the chimpanzees.

What’s worse than this? Not a lot. There are many poorly phrased questions in the consultation paper suggesting how the system could work in practice. But there’s no indication how its success will be measured and no rescue plan for the point at which a private firm falls over, as it surely will, under the weight of Themis’ scales.

“The price of justice”

The potential effect of the Lord Chancellor’s changes for legal representation in criminal cases is so far beyond the pale that the proposal itself is nothing short of a whitewash. Graylings proposal doesn’t just tear a metaphorical Clause 29 from the charter, it rips the page out to wipe a fiscal smear across the Treasury’s arse.

In the consultation paper presenting this stroke of genius, Grayling estimates the proposals will, if implemented, deliver savings of some £220m per annum in 2018/19. A memorable figure, that. £220m. Reminds me of – no, wait – ah yes, that’s near as dammit the overdraft incurred by the Department for Communities and Local Government this year. As I recall, the Public Accounts Committee had a quick trawl through the bean counters’ bottom drawers and discovered that the DCLG finished the year £217 million overdrawn.

The charming The Rt Hon Margaret Hodge MP put it rather eloquently when she called that, ‘an unacceptable abuse and waste of public money’.

Never mind wasting money. Instead, consider the implications of the PCT, which constitutes an even greater, unacceptable abuse of privilege. When Grayling next spends time at one of his four surgeries, he would do well to remember what took place 20 miles to the West of his constituency. It’s a funny little place. With no small amount of irony, it’s on Grayling’s doorstep that, in 2015, they’ll be celebrating the 800th anniversary of the ‘signing’ of the Magna Carta…

 

 

Rentaquill: Rentaquill is a writer who pays her mortgage by working hard and – privately – specialises in logodaedalism and picking sodding great holes in the language used by people in the public domain.

  • http://blogitics.org right_writes

    I am sure better legal minds than mine, can tell me how a treaty arrived at outside of parliament between “the people (barons)” and the “king (parliament)”, can be modified, repealed without the express consent of both parties?

  • Simon Roberts

    May I suggest that justice for all before the law is not the same as providing taxpayer-funded legal aid.

    I read the Magna Carta to say that no-one is above the law and everyone should be entitled to justice.

    I didn’t read it to mean that in the event that someone cannot afford appropriate legal representation then the money for said representation should be taken from others to pay for it whether they agreed to it or not.

    In fact, I would argue that in doing so the right to justice of the taxpayer is being compromised. Surely the very idea of taking monies by threat of force or imprisonment from the public to pay for another’s legal representation goes against the spirit of the Magna Carta itself.

    • OzWizard

      The only definition of “Justice” I’ve ever found helpful was, “The absence of Injustice”.

      An eminent QC once said to me, “The courts are not about Justice; they are about interpreting the Law.”

      Clearly, since Justice is not a commodity, it cannot be fitted comfortably into the lexicon of Economics, which deals EXCLUSIVELY with things which can be “measured in money terms”, things which can be exchanged and owned. If it does not have a “price” attached to it – and Justice never should, since it is “priceless” – it cannot and should not be measured “economically”.

      When a society is obliged to tolerate Injustices because it cannot afford to correct them, it is on a downward slope from which recovery will be very difficult. The effort need is moral, not monetary. If the moral strength is sufficient, the “money” question will fade into insignificance.

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