December 05 2023
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‘There’s no point in rights if you can’t enforce them’

‘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.