Wednesday 18 March 2015

Despair and not a lot of hope ...!

Rarely, if ever, has a British government engaged in such an assault on justice than the present coalition.  The brunt of the assault applies to England and Wales since justice matters are mostly devolved to Scotland and Northern Ireland.  (The devolution settlements have become complex - see Wales, Scotland and Northern Ireland).  I am not proposing in this blogpost to analyse all the regressive changes made by the coalition over the last 5 years but they are likely to be very far reaching indeed.

The coalition has had two Secretaries of State for Justice:  Kenneth Clarke QC MP and Chris Grayling MP.  That office has been doubled with that of Lord Chancellor though the modern version of the Lord Chancellorship is nothing like the immensely influential (if not powerful) office that it was prior to the Constitutional Reform Act 2007.

Kenneth Clarke - a lawyer in his earlier days - embraced with enthusiasm the Treasury demand for budgetary cuts.  The spadework for legal aid cuts was completed by the time Grayling - a non-lawyer - was appointed though, at that time, the Legal Aid, Sentencing and Punishment of Offenders Bill was still before Parliament and the legal world had raised major concerns over its legal aid provisions.

The reduction in legal aid has led to many more litigants in person and, as Rachel Rothwell says in the Law Society Gazette 16th March, this is particularly frustrating for judges because they are having to explain, time and again,the basics of procedure - and seeing a court timetable filling up with the type of case that, had a lawyer been consulted at the outset, would never have been brought, or would have settled early on.  What a waste of resources.

Another point is that, when they were practising as barristers or solicitors, most of the present judiciary learned their business via legally aided work.  If the legal profession is unable to either attract or retain the brightest young people, the judiciary of the future is clearly at risk.

Further damage has been inflicted on justice by the recent legislative changes to judicial review.  This is an important - though admittedly rather cumbersome and costly - route by which the law ensures that government operates within the law.  Yet more damage to access to justice will be achieved by the huge increases in court fees.  Hardly a move that will help those for whom litigation is a necessity if their future lives are to have any quality.  The statement in the House of Lords by Lord Faulks QC that litigation was very much an optional activity is one of the most uncaring and objectionable comments I have ever heard from a government.  Furthermore, the fee increases are damaging to medium and small business who, far too often, have to sue to recover debts.

In the late summer of 2014, Grayling appeared to be supercharged over Conservative Party reforms to human rights law.   It looked as if the attack dog had got the cream!  According to Grayling, if a Conservative government is elected in 2015, there would be a new relationship with the European Court of Human Rights since their judgments would be regarded as "advisory" only and the Human Rights Act 1998 would be repealed to be replaced by some form of British Bill of Rights.  His legally illiterate ideas were excoriated by lawyers and clearly would not have been acceptable to either the Liberal Democrat party (the other part of the coalition) or to the devolved administrations in Edinburgh and Belfast.  These ideas appear to have been shelved.  Maybe?  It may be that they are seen as electorally toxic material since attacking the rights of the British citizen is hardly likely to go down too well even if it is not an everyday talking point on most high streets.  For my part, I suspect that this topic has just been put in a dark room and will emerge again into the light of day should the Conservatives manage to form the next government.

Please read the excellent article by Joshua Rozenberg - Law Society Gazette 16th March - Legacy of a law lord chancellor.   Also, please take a look at the Justice Committee 8th report slamming the government's badly researched and implemented legal aid cuts which have impeded access to justice.  The committee's concern is touching but it's a shame that more MPs did not oppose the Bill.

What hope is there for the future?  Well, of course, that might depend on the political form of the next government but the signs are far from encouraging.  If Clarke and Grayling have achieved the big savings demanded then the bigger players in government are pleased and most opposition politicians seem to be quietly happy that the dirty work has been done before they might have to to take on the  real responsibilities of office.  As the Justice Committee notes-

"There is no realistic early prospect of substantially increased funding for legal aid in the civil courts. This makes it even more important that the recommendations we have made to ensure the current scheme works properly are implemented. These include: better information from the Government on remaining eligibility for legal aid; proper management of the exceptional cases funding scheme so that it works as Parliament intended; an amendment to the Civil Legal Aid (Procedure) Regulations 2012 giving the Legal Aid Agency discretion to grant legal aid in appropriate cases involving domestic violence; free mediation assessments for a year; a rethink on the Legal Aid Agency's approach in a number of areas; and careful monitoring of the geographical distribution of legal aid providers. In the longer term, proper research into the costs and effects of the scheme should inform a more fundamental review of the policy."

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