The move to subsume the Legal Services Commission into the justice ministry shows you should be careful what you wish for.
Better be careful what you wish for. For much of the Legal Services Commission's 12-year life, legal aid lawyers have fired vitriol – some fair, much not – at the commission and its policy dithering, bureaucratic bungling and stinginess with the taxpayers' money.
But now the end is in sight for the body that allocates legal aid and is everyone's favourite bogeyman. The LSC is going to be subsumed into its parent department, the Ministry of Justice, in an effort to reduce government spending on legal aid. So is everyone celebrating its demise? No. Is it the worst possible result? Yes, quite possibly.
At last week's Legal Aid Practitioners Group (LAPG) conference Sir Bill Callaghan, chairman of the LSC, reflected that it was not his job to "question policy decisions", adding that "in the overall scheme of things whether delivery of legal aid is overseen by the LSC or ministers wasn't the most important issue".
Delegates were right to anticipate a sizeable caveat, as Callaghan continued: "But knowing that we can shine the searchlight of justice on unjust acts is what keeps me and LSC staff motivated. That is important." He cited the Baha Mousa case, the groundbreaking ligation pursued by Phil Shiner on behalf of Iraqi civilians against the military and the subsequent investigation. "That inquiry could not have happened if the LSC had not funded a judicial review," he said, adding that he hoped the new director of legal aid casework, which will be created under the new legal aid bill, would be able to "draw on the support of colleagues within the new agency in making these difficult and controversial decisions". Quite.
It is heartening to hear the head of the LSC praise the often controversial Shiner. I recall the Daily Mail – under the banner headline "Murder Slur On Our Soldiers" – running a contentious cartoon of a large Iraqi at dinner with his wife, reading a phrasebook, with a solicitor hanging upside down from a rafter in the background. "I've just worked out what he said after 'I'm English'," she says. "It was: 'Do you want to sue anybody?'"
I interviewed Shiner in 2004, when tabloid opprobrium was being heaped upon him on a daily basis and politicians such as the Labour MP Gisela Stuart were dismissing his work as "disgraceful ambulance chasing". Shiner told me he had to remortgage his house to the tune of £35,000 to pursue the Iraqi cases. He complained of intimidation "through an increasingly draconian funding regime". "It seems the endgame is to force us to give up our contracts, go out of business or to an early death through the stress of it all," he said. I recall the LSC indignation at any suggestion of political interference in its decision-making. They did not like it and said Shiner's suggestion was an insult.
This year another of Shiner's Ministry of Defence-bothering clients, the peace activist Maya Evans, won a battle to block legal aid cuts for funding of human rights cases. The high court ruled that changes to legal aid last April to save money could not stand because of the "unlawful" influence of the defence secretary, Bob Ainsworth. Evans was trying to stop Afghans captured by UK forces being sent to prisons where they allegedly faced torture.
Ainsworth had argued that legal challenges against the MoD arising from military actions in Iraq and Afghanistan could have consequences for the UK's defence, security and foreign policy interests. According to Lord Justice Laws such concerns influenced the rule changes:
For the state to inhibit litigation by the denial of legal aid because the court's judgment might be unwelcome or apparently damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government. It would therefore frankly be inimical to the rule of law.
The justice minister, Jonathan Djanogly, also addressed the LAPG conference last week. He pointed out that a third of the MoJ savings were coming from the department:
One aspect of the department's savings is the abolition of the LSC. Once completed we anticipate that this alone will deliver around £8m savings per year to the department.
Fair enough, it seems right for the commission to share the pain – but not at the expense of proper systems to ensure there is no political interference.
This is far from clear. Clause 11(5) says there must be a provision for review, but clause 11(6) says only that there may be provision for appeals. The human rights group Justice said this was the minimum required to prevent the lord chancellor being seen as a judge in his own cause and to avoid "the absurdity of the lord chancellor being sued for refusal of legal aid in a judicial review, which substantively is made against another minister or, even, himself". It is not enough.