January 13 2022

‘There’s no point in rights if you can’t enforce them’

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‘There’s no point in rights if you can’t enforce them’

King John by an unknown artist, 1620 © National Portrait Gallery

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King John by an unknown artist, 1620 © National Portrait Gallery

King John by an unknown artist, 1620 © National Portrait Gallery

What I write about here is the preservation of access to justice. It is not about preserving legal aid lawyers’ diminishing incomes.

There have been many platitudes spoken about Manga Carta. There will be bucket loads of clichés and noble sentiments spoken about human rights during debates and in the media over the Government proposals to replace the Human Rights Act with a ‘British Bill of Rights’.

But the truth is that, denied an effective voice in the courts, having ‘rights’ is a meaningless concept. What is the point of a ‘right’ if it is not exercisable when infringed or suppressed by powerful opponents with access to specialist legal help denied to the ordinary citizen?

Legal aid practitioners have highly specialist skills (no less than doctors) that require enormous knowledge of law, procedure and good judgement often learned through experience.

All of that collective knowledge base is now collapsing.

Legal aid is not there for the benefit of lawyers. It is there for the benefit of the public and it is in danger of becoming ‘not fit for purpose’ due to a ‘dumbing down’ in terms of quality and efficiency. The prospect of further cuts will accelerate that process and talent will both haemorrhage from and not be attracted to legal aid work.

A sense of vocation and public service does not pay the bills or make housing affordable.

So what does this mean for justice and the public?

It means that quality legal representation which is an absolute necessity in an adversarial system will not be available. It is a fundamental dishonesty for those who wish to cut legal aid to imagine that our adversarial system will any longer function for most people.

In 1949 legal aid was brought in for a reason. It was introduced as a right not a benefit and to reflect the increasing complexity of legal problems imposed upon ordinary people partly by the development of modern society but also Parliament itself.

Now I come to the heart of my argument.

It is fundamentally immoral, unjust and ultimately self-defeating for this generation of politicians to spout endless high sounding blather about Magna Carta and human rights whilst shamelessly presiding over the destruction of the adversarial system without putting something in its place.

This replacement is obviously an inquisitorial system (characteristic of the Continental European jurisdictions based on Roman law rather than the English Common Law) whereby ‘legal champions’ are replaced by the creation of a cadre of specialist judges and legally trained civil servants to assist. (In France they have a juge d’instruction – part examining magistrate, part district attorney). It is not clear if this will save any money. The National Audit Office has reported that, like for like, UK expenditure was average compared to other jurisdictions.

It is clear that the criminal courts are going the same way as the civil courts. There are litigants in person wandering around the courts not only in emotional meltdown but causing delay and great expense to all the other agencies and deep frustration to an overwhelmed Judiciary.

Those judges will also be hard to replace due to the absence of suitable recruits as lawyers leave this work

Further cuts to legal aid are in effect leveraging a move away from an adversarial system to an inquisitorial model.

If it is to be done it should not by stealth cuts but by proper structural reform. No such reform can legitimately be conducted without in depth research and investigation as it is a matter of constitutional importance.

As a former Prime Minister, Margaret Thatcher said:

“The legal system we have and the rule of law are far more responsible for our traditional liberties than any system of one man one vote. Any country or Government which wants to proceed towards tyranny starts to undermine legal rights and undermine the law.”

The possibility of departing from an adversarial system was last considered by a Royal Commission in 1993 nearly 23 years ago. It is surely beyond doubt that an adversarial system needs adequately remunerated professional specialist firms and advocates. (The legal aid budget is so small that it would fund the NHS for only two weeks).

If the consensus develops that despite the current collapse in the legal aid spend further cuts are required then it is up to politicians to ensure the public are not abandoned when they seek justice.

Parliament should examine the evidence through a Royal commission and make an informed decision not one based on propaganda and newspaper hyperbole. Those who prefer the testing the truth of the evidence by the adversarial system over a more inquisitorial method can make their case to the Royal Commission as can those who oppose.

The Commission can obtain up to date expert evidence as to cost comparison. In the meantime the Government can engage with the profession to improve the system we have. There is much to be done. Let’s get on with it without wasting more time on unworkable top down reforms currently being imposed on the profession until examined by an independent pay review body.

Both these measures will detoxify legal aid and take it out of politics and into the realm of reasoned examination.


8 responses to “‘There’s no point in rights if you can’t enforce them’”

  1. Hello Robin,

    I think that we have interacted is a constructive way before…

    I challenge one aspect of what you have written above on a core semantic basis… [Cue: groans, eyes rolled, “Not again …!”]

    You write:

    “There is no point in “rights” if you can’t ENFORCE them.”

    For me it’s LAWS that get ENFORCED in a JUDICIAL system.

    For me RIGHTS are balanced (or not…) by RESPONSIBILITIES; by OBLIGATIONS, both internal to the rights-seeker, and externally, by one individual responsibly supporting the rights of another, because he or she feels a spontaneous OBLIGATION to do so.

    If a RIGHT exists, then, I ask who is going to service it, to administer it, to see to it that that moral RIGHT, that may even have been written into the LAW, is …. met? Respected? Serviced?

    Who feels OBLIGED to see to it that an individual’s genuine, sincere, natural, human rights are respected, and not simply violated?

    NOT The National Council for Civil LIBERTIES, I note, whose members have so often asserted ADULTS’ RIGHTS without balancing those with others’ NEEDS, especially those of absent children.

    Which people have that VOCATION, which has nothing at all with being paid to work within the Judicial System, although, as in a dwindling way with Doctors of Medicine, we naturally seek to ensure that those that devote their lives to sincerely helping others, with a considerable level of realised attribute and skill, are appropriately rewarded on a financial basis, and also respected for the service they provide to others in Society.

    I paraphrase, or adapt, Jack Kennedy: “Ask not what your fellow human beings can do for you; ask instead what you can do for your fellow human beings, especially when you are gifted in many ways, and when your fellow human beings are sometimes not so gifted as you, and can be somewhat needy as a result.”

    Countries do not per se exist, over and above being a collection of individual human beings.

    When we talk of “systems” and “rights” in this sort of context, we generally forget that only human beings count… and can be effective in seeing that others’ rights are not violated.

    There is no Big Brother, or God, or “System” this is going to fix things, and protect others .. that’s down to us as good, honest, and caring individuals working together, co-operating, and putting Justice and Service before Income, while also bearing in mind that there are bills to pay.

    The tail of Income has generally been wagging the Dog of Justice for some time… I am profoundly sickened by some current instances, where this is resulting in injustice, although I have just been referred to an apparently good Firm of Solicitors that puts sincere service and advice first, before guaranteed income for itself, while no result is guaranteed at all.

    Then, a very, very, nasty case, that has both Civil and Criminal aspects, may see some Justice done, and restitution effected.

    Then the NATURAL RIGHTS of my Client will have been respected in a Court of Law, and her belief in our Judicial System may begin to re-build, from Zero.

    Yours, George the Terrier with the short tail..

  2. So it seems that the issue of ENFORCING RIGHTS is a bit of a red herring … we can only strive to see to it that INDIVIDUALS’ MORAL / LEGITIMATE RIGHTS are NOT VIOLATED, and if they are, that those violations are reversed, by nailing the violators. // And wow, are we doing crap at this here in the UK … how many human beings are homeless… how many families are living in hotel rooms? // What happened to their HUMAN RIGHT to have a real roof over their heads? // It’s the violators that need to have the Law enforced upon them.

  3. It’s not just legal aid in the ordinary civil courts. In the health sector (probably the public sector more generally) employers will pay vast sums of money to silence critics who have done no more than exercise their rights, often disciplining them on trummped up charges. The inequality in the resources these individuals can put into their defence, and the amount employers are willing to spend on persecuting them is enormous.

    This has been exacerbated by the changes to employment tribunal legisltation, where perscuted employees must now pay to present their case.

  4. shirley jones says:

    HALLELUJAH!!!! At last. Summed up precisely, as I keep saying myself, as do many others. The problem is that Cameron and crew are obsessed with denying ordinary members of the public of what they see as ‘Benefits’, which they are not. This demonising of genuine claimants has to stop. Legal Aid is not a benefit, it’s to ensure that no one is denied justice because they can’t afford the exorbitant lawyers fees to do it, because otherwise there would be no justice at all.

    Legal aid is just one problem within our legal system, the others are that fees have risen out of control unchallenged and often unjustified and there is a failing legal system too, where ‘experts’ who are not sufficiently qualified or experienced, are being relied upon for ‘expert’ opinions and in court too for ‘expert’ evidence, when they should not be but the checks are not being made of them, leading to flawed evidence and flawed judgements and therefore some huge injustices, where victims are being made victims twice over, in both criminal and civil cases.

    It’s the same with unemployment and sickness ‘benefits’ that a majority have paid into a ‘National Insurance’ scheme to cover us if this happens to us, and these days it can happen to anyone, which for most people are never sufficient to benefit from as such, those that can are actually in the minority if the true statistics were given. The clue is in the title, it’s an ‘insurance’ scheme, and the majority who claim genuinely should not be penalised for the sake of those in the monitory who do not. Instead making everyone suffer who claims, they should take more care to wheedle out and deal with those who abuse the system more effectively.

    Many of our systems that are supposed to be there to protect us in our hour of need, are now failing and not fit for purpose, except to the very rich of course, but hasn’t that always been the case?

    Shirley Jones.

  5. Christopher Lennon says:

    It is nonsense, in my view, to suggest trial procedure in England and Wales is being changed, deliberately, or covertly, from an adversarial to an inquisitorial system.
    That would amount to abandonment of the common law and the reception of the civil, or Roman law. It is not going to happen.
    The common law is not peculiar to England and Wales. What about almost all states of the USA, Ireland, Australia, New Zealand, Hong Kong, India, the Caribbean, Singapore, Malaysia and other countries to a degree, where there are mixed systems; Scotland, South Africa, Sri Lanka, Pakistan, Bangladesh? The common law is one of the three great legal systems of the world. We are not about to change to one of the other two.

  6. Redl4wyer says:

    There is nothing wrong with fighting to maintain the income of Legal Aid lawyers. Legal Aid practices & NFPs run on grossly underpaid, overworked caseworkers, trainees and solicitors. Only a minority have good salaries and they also do a lot of private work. Most legal aid lawyers struggle – I took a massive pay cut when I changed from my job in Housing Benefits to start a career in law. The Professional duties that we have are onerous and the consequences of our actions on vulnerable clients are extremely serious. We need a campaign to improve the pay and conditions of Legal Aid lawyers.

    • Thank you, RedL4yer …

      you make it clear that you balance your interest in income with an interest in Social Justice and Social Responsibility.. there are somewhat too few of us about, and we need to make our presence clear to all sorts of people, including the many whose only interest is in maximising income… and sod Justice…Fairness .. Social Needs ..

      I have achieved some ground-breaking work in Maths and Information Systems, that could make me an obscene fortune…. if I sold my soul to the likes of Bill Gates and Larry Ellison.

      I also do lots of Child Protection and Anti-Fraud work, and the extent of child abuse and fraud, in the £billions, now simply staggers me …

      If I can’t see a way to realise the fruits of my work in a more socially responsible way than has happened historically, as was the case around Ted Codd’s work, then I will simply not publish it, but I will destroy it instead.

      Yours, George Gretton

  7. Robin Murray says:

    Thanks everyone for responding. To Christopher I post this link. I am not alone.

    I personally believe in the adversarial system but it needs to be prpery funded.

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