Access Denied - Ken Clarke

 By Tom Bangay and James Lewis

Austerity, riots, spiralling prison numbers and terrorist threats have led to major responses from the UK Government. The Legal Aid, Sentencing and Punishing of Offenders Bill was heavily criticised in the House of Lords, while the Justice and Security green paper prompted hostility from leading lawyers and NGOs. The IBA met with Justice Secretary Ken Clarke and put their concerns to him.

Currently standing at £2.1bn, the UK’s legal aid bill dwarfs most others. The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) addresses the UK Coalition Government’s commitment to cut costs fast, seeking to save £350m, and reducing the availability of legal aid. ‘If I manage to get all my changes through the House of Lords, we will still have by far the most expensive legal system of legal aid in the world’, Clarke emphasises, adding that ‘no other Western democracy would make taxpayers’ money so widely available for so much litigation and legal advice… what we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious’.

Critics have attacked the bill for removing legal funding from vulnerable and poor claimants. Indeed, the Ministry of Justice’s own Civil Justice Council (CJC) found that the cuts would ‘have a disproportionately adverse effect on the most vulnerable in our society’.

Clarke was quick to point out that his reforms intend no such thing and was sanguine about the findings of the CJC: ‘It doesn’t speak on my behalf, it’s there to give me opinions, but I don’t have to agree with it’, he explains. ‘The whole point of reducing public spending on a scale, which no democratic government has attempted in modern times in most Western countries, certainly not in Britain, is to do so in such a way so that you don’t damage the vulnerable’, Clarke says. And he later adds: ‘I want to identify vulnerable litigants, not vulnerable law practices. That’s the line I’m trying to draw’.

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However, worries persist that restrictions to legal aid in family and welfare cases would directly affect claimants in dire need of help. Shadow Justice Secretary Andy Slaughter MP cited the proposals’ impact on domestic violence cases as an example: ‘The Liverpool Law Society gave me the example of one of their firms, which said they looked at the government’s revised definition [of domestic violence], and against 278 current cases they are pursuing which have legal aid, they reckon only five would qualify under the revised definition.’ Which begs the question: what would the other 273 claimants do?



  ‘What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.’'

Ken Clarke


A major concern is that legal aid savings have not been properly costed, actually representing a false economy as costs will simply be passed around to different state departments. A party to a housing dispute without recourse to legal redress, for example, may find themselves under such stress that they are forced to turn to the NHS, or end up placing greater pressure on the benefits system, through housing benefit claims, or similar. Andy Slaughter explains: ‘If you take someone’s welfare benefits away wrongly, they still have to live, then they may get into debt, rent arrears, facing eviction, or mortgage arrears. If people who are already on low incomes seek debt or welfare benefit advice, and don’t get it, and as a consequence the problem gets worse, sooner or later the state will have to pick up that bill’. If a housing claim appeal is no longer entitled to legal aid, for instance, it may ultimately end up in an eviction, which on average costs the state around £50,000.

Clarke dismisses the idea that costs would be simply shifted around the system as ‘campaigning nonsense’, suggesting that many objections are fuelled by ‘an army of lawyers advancing behind a line of women and children’. The latest research from King’s College London suggests otherwise. Dr Graham Cookson’s report, Unintended Consequences: the Cost of the Government’s Legal Aid Reforms, identified knock-on costs to the public purse of some £139m per annum, wiping off more than half of the MoJ’s purported savings.

Leading human rights lawyer Sir Geoffrey Bindman responds to Clarke’s dismissal of costing concerns (which were also raised vehemently by peers during the bill’s passage through the House of Lords). ‘Ken Clarke made no attempt to dispute the obvious consequence of legal aid cuts: that many people will be denied justice because they will be denied necessary advice and representation. Nor does he respond to the claim made by judges, lawyers and others directly engaged in the legal system that the cuts will cause additional cost to the public purse in lengthier hearings, and even more in the cost to health and social services of unresolved disputes, and the anguish and ill-health produced by them. Nor does he recognise that simplifying and streamlining processes is a better way to save costs than inflicting savings on the most vulnerable people in our society. He has received specific proposals for doing this which he has ignored or rejected.’

Riots and a rush of prosecutions

Riots in cities throughout England last summer presented a formidable challenge to the justice system. An outraged public demanded that justice be swift, strong and unforgiving. Politicians condemned the rioters in the strongest terms, with David Cameron warning that anyone involved in rioting should expect to go to prison. ‘What happened on our streets was absolutely appalling behaviour, and to send a very clear message that it’s wrong and won’t be tolerated is what the criminal justice system should be doing’, said the Prime Minister. Theresa May described the rioting as ‘sheer criminality’, and told the House of Commons that ‘the perpetrators of this violence must pay for their actions, and the courts should hand down custodial sentences for any violent crimes’. The political pressure moved justice minister Lord McNally to warn that ‘it’s dangerous when politicians try to do the sentencing’.

Clarke defended the impartiality of the judiciary. ‘I don’t think that political pressure played any improper part… the tabloid press are always going to be saying, “hang them all from the lampposts” and this kind of thing’, he says, but adds, ‘no directions were given to the courts in any way’. Instead Clarke highlighted the agility of the judicial system in achieving a through-the-night response to the sudden rush of prosecutions. ‘There were good public interest reasons for having the all-night courts we had, because it did quieten the turmoil that it was dealt with so quickly and promptly. It was dealt with justly as well, I think’.

In sentencing rioters and looters, judges were influenced by the comments of Manchester recorder His Hon Judge Gilbart QC, who suggested guidelines to the wider judiciary. Chairman of the sentencing council, Lord Justice Leveson, lamented that Gilbart ‘started to give sentence ranges… for offences with which he was not concerned. That’s not even something [the Court of Appeal] does’.



  ‘‘Ken Clarke made no attempt to dispute the obvious consequence of legal aid cuts: that many people will be denied justice,’'

Sir Geoffrey Bindman

Ultimately the Lord Chief Justice, Lord Judge, sitting in the Court of Appeal, supported the view that the widespread and aggravated nature of the rioting and looting merited harsh sentences. Clarke agreed. ‘By and large’, he explains, ‘I think it was legitimate for the courts to take into account the background of public disorder when imposing the sentences. The circumstances did, I think, justify taking a pretty severe view’.

The spike in custodial sentences following the summer’s civil unrest will unavoidably lead to a rise in the UK’s already troubling prison population figures. The current number of inmates hovers around 87,750, approaching what is said to be a system capacity of 89,000. Clarke called the figures ‘extraordinary’, adding, ‘I think the prison population has exploded for no very serious reason and it hasn’t actually satisfied anyone that we now lock up double the numbers we did when I was last doing this job’. He emphasises the value of ‘tackling drug abuse, doing some rehabilitative work in the prisons, making them more successful at reforming prisoners, to use the old-fashioned word. That’s the downward pressure that I want to apply’. His proposals – currently on hold – include sentencing discounts for early pleas and changes to judicial discretion in imposing indeterminate sentences for public protection. In addition he plans to increase private-sector involvement in prisons, with the first private prison now open in Birmingham and tenders out for nine more.

‘My personal belief is that facing up to competition – actually trying to outperform other people, with fresh ideas, about how you manage prisons – is of as much benefit to the public sector-managed ones as it is to the private sector ones’, Clarke explains. Concerns have arisen regarding a lack of research into the private sector approach, with Cambridge Professor Alison Liebling, author of a 30-month study of five private and two public prisons, telling the Guardian that ‘experimenting with private sector operators is quite high risk. They do sometimes bring innovation and some establishments are doing really interesting things. But when they go wrong, it’s in fairly major and predictable ways’.



  ‘‘What we’re trying to do is get the balance right between seeing justice done on the one hand and not compromising genuine national security interests on the other’'

Ken Clarke

For his part, Clarke is seeking to instil ‘a much more competitive environment on both quality and price whereby I think you not only save money, you stimulate innovation’. Critics point out that private companies managing prisons seem to have a financial interest in reoffending, which keeps prison populations high; Clarke wants to avoid this approach by negotiating contracts with providers in a more constructive manner. ‘Part of the contract has to be based on demonstrating you can reduce the reoffending level for this cohort of prisoners’, he insisted. He also wants to explore and expand the ability of inmates to undertake paid work, with a percentage of any proceeds going to a Victim’s Fund.

Tackling terrorism


The MoJ’s other major legislative initiative is the Justice and Security Green Paper, which seeks to address difficult issues regarding the trial of terrorist suspects involving evidence gathered from sensitive intelligence. The settlement of the cases of Binyam Mohamed and other former Guantánamo Bay detainees proved costly, both in terms of finance and credibility, to the UK Government, with its ministers alleging procedural difficulties relating to the use of sensitive intelligence in judicial proceedings. The cherished intelligence-sharing relationship with the US is often described as paramount to the UK’s national security, and successive governments have cried foul at judicial attempts to bring such intelligence into the public domain. ‘What we’re trying to do’, Clarke explained, ‘is get the balance right between seeing justice done on the one hand and not compromising genuine national security interests on the other’.

The bill proposes to extend the use of Closed Material Proceedings (CMPs) – in which suspects are represented by security-cleared Special Advocates (SAs) – to the wide spectrum of civil cases. However the SA/CMP system, even with its current, limited application, is not without considerable controversy. Evidence relating to sensitive intelligence is revealed only to the SA who is then prohibited from contact with the client and his or her lawyers. Campaigning groups such as Reprieve have questioned the fairness of a trial in which a defendant can neither know the nature of evidence against him or her, nor instruct or even talk to his  or her advocate: ‘The SA could see [the evidence], but would be unable to discuss it with the claimant at all. The outcome would be to tip the balance in favour of the state and against the individual, by the introduction of more government evidence which cannot be seen, challenged or questioned by the individual or their lawyer’. Reprieve concludes that ‘a trial where only one side can see the evidence is not really a trial at all in any meaningful sense’.

Clarke defends the proposals, pointing out that the reform would at least allow all the evidence to be heard by the judge. ‘What we’re proposing is better than we have now, because it will allow the cases to be tried…the difference from now is that the judge, for the first time, will be able to reach a conclusion. Unfortunately, only he will have heard all the evidence – the client will only get the gist of it’.

A trial in which only one party and the judge are allowed to see all evidence raises obvious problems for the principle of equality of arms. Public Interest Lawyers (PIL), the firm led by Phil Shiner, who advised the family of Baha Mousa in action against the British Government, contributed to the consultation regarding the green paper. Their briefing described the procedure as ‘like fielding a football team, the defensive half of which can’t cross the halfway line or even see where the attacking half are, and the attacking half can’t talk back to their team mates or the manager. Of course, the government side, being security cleared, have no such disadvantage’.

Of further discomfort to the legal profession is the government’s suggestion that it should be for the Secretary of State to decide when to invoke CMPs. As Shiner explains, ‘the unfairness caused by a party to proceedings deciding when to adopt certain legal measures to ensure a fair trial should be self-evident’. Reprieve is concerned that the real aim behind the government’s extension of CMPs is to avoid humiliating payouts to former detainees and revelations of British complicity in torture: ‘The stated justification may be national security, but the real reason is political embarrassment’. The settlements paid to the Guantánamo detainees led the influential UK newspaper The Daily Mail to dub the government’s approach a ‘terrorist cashpoint’.

Nevertheless, if the state can decide which evidence of alleged wrongdoing to obscure from public scrutiny, this presents a dangerous threat to open justice. It is a threat that Clarke is aware of himself. ‘I’m worried about how the special advocate takes instructions, he’s got to know roughly what he’s going to face; how does the Special Advocate give the gist of the case to the defendant; is the special advocate really in a position to challenge what’s going on; all those are important questions’.

These are questions to which the Special Advocates responded themselves, sending in a lengthy briefing to contribute to the MoJ’s consultation. Leading Special Advocates took part, including QCs Angus McCullough, Hugo Keith, Helen Mountfield and Mark Shaw. Their findings make for alarming reading. ‘CMPs are inherently unfair; they do not “work effectively”, nor do they deliver real procedural fairness’, they reported [emphasis in original]. On the question of the Secretary of State having the power to decide when to use CMPs, they were similarly blunt. ‘It is difficult to see how the proposal that the decision whether to use a CMP should be made not by the Court, but by the Secretary of State, who is likely himself to be a party to the action, is compatible with any notion of equality of arms and natural justice’. If one party to a dispute can decide the terms upon which it will be decided, the notion of adversarial justice recedes even further into the distance.

The SAs also lamented that the MoJ had been curiously selective in its research into the matter, particularly in looking for examples abroad. ‘An absolute prohibition on direct communication [between advocates and clients] is not a feature of procedures used to deal with closed evidence anywhere else in the world’, they said. The green paper had looked at examples in the Netherlands, Australia, Canada and Denmark but, strangely, had not considered the system in the US, where the client’s lawyers are themselves security-cleared but made subject to ‘Protective Orders’. The SAs ‘find it striking that in the US, where the threat from terrorism is at least as great as that in the UK, and relevant material must be at least as sensitive, lawyers acting for terrorist suspects are afforded a substantially greater measure of trust and confidence than is given to SAs in existing CMPs’ in the UK.


  ‘‘A trial where only one side can see the evidence is not really a trial at all in any meaningful sense,’'

Reprieve briefing on
Justice and Security green paper


The SAs also raised a number of practical difficulties in the idea of rolling out CMPs across the entire civil justice system. Problems highlighted include: ‘the lack of any practical ability to call evidence’; ‘a systemic problem with prejudicially late disclosure by the government’; and the HR nightmare that would result from an attempt dramatically to increase the number of security-cleared staff in the judicial system. CMPs are used occasionally in employment tribunals at the moment, and SAs report that ‘there is an acute shortage of security-cleared employment judges, lay members, and employment tribunal staff… [f]or several months decisions were not being sent out because London Central Employment Tribunal did not have a security-cleared typist’. One can only imagine the delays that would ensue from a system-wide adoption of CMPs. The SAs concluded that ‘the proposal to extend CMPs to become available in civil litigation is insupportable’.

So what now for the embattled proposals? LASPO has endured a torrid time in the Lords committee stage, with various amendments tabled to soften its impact; however it still rumbles inexorably towards Royal Assent. Last year, Clarke described the Justice and Security Green Paper as ‘very green’, but all three main political parties have thrown their weight behind it, with Conservative MP David Davis the sole dissenting voice. He called the proposals ‘a disgraceful assault on the principles of open justice’. The paper’s consultation period ended in January; lawyers and defendants will watch its progress warily. With the cost of legal aid and procedural fairness high on the MoJ’s agenda, Ken Clarke has a difficult balancing act in delivering justice. It is hard to see how it could be delivered in areas where MoJ proposals appear to ensure instead that access is denied.