Guardian, 18 March 2011
From tuition fees to library closures, charities and individuals are challenging in court the coalition's attempts to roll back the state
So where are the limits of that most vague of concepts: the "big society"? To what extent can ministers pull the funding rug from under voluntary or community groups or remodel the system of welfare benefits? Can they close down our local libraries and ramp up tuition fees for students? No one knows; however those limits are being tested, or are about to be, through the courts.
As the cuts kick in, communities fight back and increasingly part of that counter attack is the law. The Child Poverty Action Group last week began its challenge to housing benefit cuts, arguing that reforms will transform the benefit from a truly national scheme into an "engine of social segregation".
Boris Johnson has warned of "Kosovo-style social cleansing". The mayor reckons more than 9,000 London households and more than 20,000 children may have to leave their homes as a result of reforms that will restrict the maximum household size to qualify for housing benefit from five bedrooms to four, and the imposition of caps limiting claims for private sector tenants to £400 a week for a four-bedroom home, £340 for a three-bedroom home, £290 for two-bedroom home and £250 for a one-bedroom home.
"We'd argue that if you strike at London you're also striking against Britain's ethnic minorities because 45% of the country's minority ethnic population live there," Sarah Clarke, solicitor at the Child Poverty Action Group, tells me. "They comprise 29% of London's residents and so anything that impacts on London will impact on Britain's ethnic minorities."
CPAG is arguing that the changes conflict with the purpose of the national scheme (preventing homelessness) and that ministers have failed to comply with equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975. Some 40% of London claimants are likely to be single women, mainly lone parents.
At the end of January a high court challenge successfully halted cuts in the capital that threatened "more than 400 projects, which serve tens of thousands of Londoners every year".
A ruling by Mr Justice Calvert-Smith declared as unlawful the London Councils' cuts of £10m from a £26.4m budget and failed to meet their statutory equality duties. London Councils announced a fresh consultation process last week.
Louise Whitfield of the London public law firm Pierce Glynn, which is representing the users of one community group, reports that they are "completely inundated and having to turn down a lot of requests from other groups facing cuts from all over the country" as a result of the challenge.
Tuition fees and library closures are "but two", he tells me. Shiner is reminding Gloucestershire and Somerset councils of their statutory obligation to provide a "comprehensive and efficient library service for everyone wanting to use it".
He also represents two teenagers, Callum Hurley, 16, and Katy Moore, 17, in their judicial review over the government's plan for tuition fees hikes, arguing that it "penalises students from poorer homes and from ethnic minorities, who are disproportionately from lower-income homes".
But aren't such legal actions just holding off the inevitable? Whitfield tells me they are not. She insists that the actions her firm has been involved in have "all resulted in better quality decisions that were not only fairer, but addressed the concerns that claimants had ... Public bodies took very seriously what the courts said and either went back to the drawing board or reinstated funding."
Judicial reviews (JRs) are limited to the correctness of the decision-making process, not the merits of the decision. When it comes to the cuts, what has been the quality of decision-making? "Pretty mixed," says Whitfield.
"Some public bodies are genuinely trying hard in difficult circumstances to give people the opportunity to have their voices heard. But in a lots of other cases there is a distinct lack of transparency and failure to explain what they're doing and why."
Litigation of this nature polarises opinion. For many who are anxious about the scale and speed of the cuts, they provide a sanity check and for families dependent on support of community groups or those in receipt of state benefits, they will be critical to the quality of their lives. Of course, there will be plenty of people who dismiss such actions as lawyer-led intrusions into the rights of government to run the country.
My brief is look at "access to justice". So to recap, we have a government apparently determined to dismantle the legal aid system and opposed to the Human Rights Act. In the recent green paper, ministers say legal aid for "most public law challenges" (note "most") is "justified on the basis that they enable individual citizens to check the exercise of executive power". Such is the scale of attack on civil legal aid, the sector is going to be decimated by the proposals which come after years of incremental erosion.
As a result of a controversial tender last year by the Legal Services Commission, Phil Shiner – celebrated by his peers and for his ground-breaking Iraq cases – had his public law caseload cut from 90 cases to 25 and, then, largely restricted to Birmingham-based clients.
Why, I wonder, is Shiner looking at library closure and tuition fees?
"Both raise profoundly important concerns for society at this time, including whether the state can simply plead self-imposed economic constraints and thus erect a 'keep out' sign to the courts no matter how blatant the illegality at issue,"he comments. Both cases should:
"remind us all how important the Human Rights Act is in ensuring the executive obeys the law and acts in a balanced manner. Ministers are attacking both the Human Rights Act and legal aid. They must be resisted at all costs."Jon Robins is a freelance journalist and director of the research company Jures, which is running the Justice Gap series examining different aspects of access to justice