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Don’t mess with the fundamental right to a solicitor

2011 September 13
by Paul Vallely

It is understandable that a government intent on saving public money at every turn should conclude that there is no reason why it should pay the legal bills of the rich. But the move which Tory and Liberal Democrat MPs voted through this week – to allow means-testing of individuals arrested by the police before they are allowed access to a solicitor – is a very bad one.

Someone arrested and detained for questioning by the police is in a peculiarly vulnerable position. They face, at the least, major disruption to their lives, damage to their reputation and ultimately a permanent loss of liberty. Those who have never before undergone such an ordeal will often be unable to think clearly and respond in an appropriate manner.

At such a time access to a lawyer is a fundamental right. But Clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill currently going through parliament gives the government power to introduce regulations to means-test such access. A man or woman who finds themselves in such a situation wants a lawyer to discuss their arrest and the gravity of the charges laid against them. They do not want the first thing a solicitor does is ask them about how they are going to pay as if they were an accident victim in an US hospital.

Means-testing for legal bills might be a reasonable proposal later in the proceedings. But those first two hours at the police station should come from the public purse.

Ministers have insisted that they are not actually proposing means-testing, only introducing “flexibility to make regulations to apply means-testing if it were considered appropriate to do so in the future”.

But those are weasel words. If something is a bad idea now, while the full scrutiny of parliament is upon it, it will equal be a bad idea when some future minister quietly introduces regulations by the back door to implement the notion. Nor it is reassuring that a new Director of Legal Aid, will decide on who gets a free lawyer “having regard to the interests of justice”.

The interests of justice are clear enough. That is why the present system was introduced 25 years ago following a series of abuses by the West Midlands and metropolitan police forces in the 1970s and 80s. The right to speak to a solicitor is a bulwark against the possibility that individual officers might abuse their power over individuals who are entirely under their control. Clause 12 should be deleted at the next reading of this bill.

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