On September 15th 2011 the prime minister stood in Liberty Square in Benghazi and told the crowd of Libyans: ‘Your friends in Britain and France will stand with you as you build your country and build your democracy for the future.’
As Libya’s interim government sets about drafting a constitution, it will appreciate that the essence of rights and freedoms in a democracy, is not just having a gleaming new book of statutes and laws setting out the rights of citizens but actually ensuring that those citizens have the opportunity to access courts to enforce their rights. In this country – ‘and I’m not making this up’ – not only are human rights under fire but the doors of the court are closing rapidly for the majority of us. This melancholy truth was alluded to recently by Lady Hale when she quipped that ‘in England justice is open to all – like the Ritz’.
Legal aid was introduced 60 years ago as part of the ‘welfare state’ along with the NHS. The Legal Services Commission, which currently runs the legal aid scheme, boasts that the principle of legal aid can be traced back to the Magna Carta and their homepage quotes: ‘To no-one will we sell, to no-one deny or delay right or justice.’ Recent and imminent changes to funding however mean that justice is now all about money. I fear that ‘justice’ is not something I will realistically be able to offer clients hope of for much longer.
One justice-bothering change introduced at the beginning of this month, was the imposition of severe caps on the rates a legal aid client can pay for experts, such as a doctor, to prepare a report or appear in court. Legal aid clients will now only be able to offer an expert about a third of their normal fee. There are no parallel caps being imposed on the fees a government department or public authority can pay an expert, despite the fact that they too are funded by the public purse. The inequality of arms in court resulting from this change is made significantly worse by the advent of ‘hot-tubbing’. Hot-tubbing here, refers to an initiative by Lord Justice Jackson in his review of civil justice and a growing trend where the experts for each party give evidence simultaneously in court, and the judge chairs the discussion between them. Clearly, in the court-tub, the stammering youthful expert in the polyester suit appearing for the claimant does not stand a chance against the Saville Rowed, silver-haired consultant specialist the government lawyers can still pay for.
But even more serious attacks on justice are about to be unleashed by the Legal Aid, Sentencing and Punishment of Offenders Bill which comes before Parliament next week. The strongest and loudest doomsayers about the bill have warned about the areas of law where funding is being cut, the costly chaos that will be created when the courts are deluged by a flood of litigants-in-person and the inevitable closure of community advice centres all around the country.
As bad as this is, and it is very bad, there are other and in some ways more fundamental justice-melting features in the bill. For example, the bill puts decisions to grant legal aid funding in the hands of civil servants. The bill provides those civil servants with no protection from the interference of ministers and funding applicants will have no right to an independent appeal if funding is refused. It appears that in future the government will be able to spare itself the delay and inconvenience of having to defend its decisions in court by simply refusing to fund a challenge. As Steve Hynes of the Legal Action Group points out, this is not a fanciful threat, it is precisely this sort of political interference with funding that was seen in the case of Maya Evans when it emerged that the then defence secretary Bob Ainsworth had secretly lobbied the MoJ to prevent legal aid being granted.
There is also a very small section of the bill (part 1, 8(2)) which gives the Lord Chancellor massive powers that make a mockery of current efforts to preserve access to justice. The unassuming little section provides that the Lord Chancellor will be able to exclude more areas of law from the scope of legal aid without further primary legislation. Presumably he would also be able to resile on any hard won amendments the government concedes during the passage of the bill through the parliament over the coming weeks.
In broad terms while the bill contains few references to the rule of law or justice, it does none the less severely impact on this area. Serious concerns are now being raised that the bill will restrict our historic rights to seek redress where for instance the state interferes with our liberty or the peaceful enjoyment of our home. The bill provides that in such circumstances legal aid will only be granted under schedule 1 section 19 if the infringement was ‘deliberate or dishonest’ and resulted in ‘foreseeable harm’, or per section 20 the breach is defined by the MOJ as ‘significant’, presumably also meaning that it resulted in foreseeable harm.
Unbelievably, claims against the state for deprivation of liberty or trespass have been overlooked in other areas of the bill as well. Such claims will not be eligible for alternative funding in the bill such as the ‘one way costs-shifting scheme’ and they will be too low in value to cope with the new Conditional Fee regime where insurance premiums will no longer be recoverable from the losing party.
Rights that are not enforceable in the court are not in fact rights at all. Very quietly therefore, we appear to be losing our right to liberty and the peaceful enjoyment of our homes, and we are being shooed into some kind of ‘honour agreement’ with the government.
The organisation Liberty have said that ‘if the bill is passed without substantial amendment, big business, government and other members of a rich and powerful elite will be able to act with impunity’.
That is, of course, true and it may also be true that if people can not go to court for justice, they will be more inclined to seek it on their own terms against government departments, against corporations and against boardroom executives.
Recently Lord Pannick said in a debate in the House of Lords: ‘There are countries where the Government win all their cases in court – but they are not places in which any of us would wish to live.’ Well, buckle up people, because the legal aid bill before parliament is a last call to all passengers on a one-way ticket to just such a country.
Jules Carey is a partner at the human rights firm Bindmans and head of their Police Actions Team.