The most famous line in Shakespeare’s Henry VI comes when Dick the butcher discusses with his rebel leader the ideal conditions for dictatorship to flourish in England. ‘The first thing we do, let’s kill all the lawyers’ is the butcher’s contribution to his master’s designs on autocracy. Our justice secretary has yet to announce publicly his intention for a mass cull of the lawyers, but his contempt for the profession and many of those we represent is barely concealed. As the former appeal court judge Sir Stephen Sedley recently wrote, appointing a political heavy to the role of lord chancellor signalled a shift in our relationship with the rule of law. And it is this shift that is currently charted for an unprecedented confrontation.
It is rare in this most conservative and atomised of professions that unity among its members is realised. Yet since Mr Grayling released a consultation on legal aid in April a spirit of resistance has united barristers and solicitors specialising in publicly-funded legal work. The months since have seen lawyers protesting outside parliament in wigs, carrying placards and even – perhaps sheepishly – chanting slogans.
There followed a record 16,000 consultation responses – from lawyers and the public alike – all beseeching the government to abandon its dangerous plans for withdrawing legal aid from yet more areas of law, denying ever more people in society access to the courts. And then in early September, the Ministry of Justice (MoJ) published its assessment of those responses and some minor concessions were made.
An existential threat
While in the past such faux reasonableness might have been enough to quell mounting discontent, it is clear that this time a great many believe Grayling has gone too far. Yes, there have been strikes by lawyers in the past but their efficacy has largely been dulled by loss of resolve and togetherness. Today we find ourselves in a position where an overwhelming number of those working in legal aid are ready to take direct action.
For over 20 years, no government has made any progressive reforms to our legal aid system. There have been repeated cuts to fees which most have endured but the cuts now proposed pose an existential threat to a number of law firms around the country. Of greater concern is Mr Grayling’s ideological opposition – initially disguised as an austerity drive – to allowing access to the courts to certain sections of society: torture victims, foreigners, prisoners. As lord chancellor he has a constitutional responsibility to the rule of law which is set down in the Constitutional Reform Act of 2005. It is that feature of his role which means his political commitment must be subservient to his duties as lord chancellor. From his first day in office Grayling’s intention has been to impose cuts on his department and he has shown no shame at all in deploying the most naked dissembling and distortion in achieving his goal. Witness his article in the Daily Mail in early September in which he speciously complained that judicial review was nothing but a tool for left wing campaigners to frustrate righteous government policy. No matter that one of the most famous judicial review cases of recent years was brought by the Countryside Alliance, wending its way eventually to the House of Lords. Or that the planned HS2 rail line excites opprobrium in shire Tories and Swampy-type environmental activists in equal measure.
A dangerous lord chancellor
Presented with this immovable obstacle we are faced with no other option. Many in the profession place understandable but naïve trust in the power of appeals to principle, well-turned sentences, and cogent arguments. All are necessary to this struggle but are impotent in combating the danger we face in this lord chancellor. He is a man unburdened by the weight of high ideals, constitutional history, and the rule of law. All the time eagerly aided by his attorney general, Dominic Grieve, himself a barrister, who only last weekend told the Annual Bar Conference that if barristers refused to enter into radically revised and reduced contracts that the MoJ would go elsewhere. Quite where he did not confide.
Contrast the motivations of lawyers in this and past tussles with government. At all times we place the interests of our clients above our own, as our codes of conduct oblige us. But the time is fast approaching when those ethical charters must be understood to mean we must take whatever action is necessary not simply to protect our clients and their immediate concerns but for future clients and, imperfect though it is, our legal system itself.