The War on Law
Something is rotten in the state of Denmark*. Whether by accident or design the Coalition is waging a war on law; not just judicial review. The Coalition is eroding the rule of law, undermining the protection of human rights and ushering in questionable changes to our system of justice. The evidence abounds. Taken separately these government policies would be a matter of grave concern. But together they form a picture that is most alarming, and should give us all pause for thought.
Lord Dyson recently noted “there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review .. the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law.” (R (Cart) v Upper Tribunal  UKSC 28, para 122). Last week the Lord Chancellor announced a series of changes designed to curb so-called ‘time wasting’ judicial review. When implemented these changes will undermine the rule of law. For instance, under these reforms the time limit for applying for judicial review will be reduced from the already short three month period to just six weeks. As the Administrative Bar Association noted in its response to the consultation there is no evidence that such a change is needed. But more importantly this change, and others, raise serious questions about the citizen’s right of access to court. The serious constitutional implications of these changes were peremptorily brushed aside by Lord Chancellor Grayling.
In another context the Coalition is also proposing to limit the right of access to court by reducing or drastically curtailing Legal Aid. ‘The rule of law and our system of justice is one of the areas where up until now we have still been able to look with pride,’ commented Lord Woolf before going on to observe that ‘the long-term effects of this [reform] will be very serious and once the damage is done it will be very, very hard to put right.’ Lord Woolf is not alone. Lord Neuberger, the sitting President of the UK Supreme Court, has quite rightly criticised the cuts to the Legal Aid budget. Denying litigants a chance to go to court will create ‘frustration and a lack of confidence in the system’, or people will be tempted to ‘take the law into their own hands’ as Lord Neuberger notes. The far reaching changes, described by some as a revolution, will save the government inconsequential amounts of money especially when set against the amounts spent on interest on the national debt, but will lead to real injustice. For example, prisoners will lose legal aid for claims. This allegedly saves £4 million a year, although legal aid for prisoners was already pared back by the last Labour administration. This saves little more than the annual cost of the Prime Minister. The government disingenuously claims that prisoners have access to an ombudsman. But how would a prisoner such as Daly be able to vindicate his rights under that system? Not very well. Immigrants are also to be denied legal aid unless they have been resident for a year. And this does not even begin to cover the changes to criminal legal aid that will upend the legal system as we know it. From the unworkable quality advocacy assurance scheme to the denial of choice for legally aided defendants the changes are not simply about saving money. They represent a cultural revolution in how justice is to be administered. No wonder the Bar and solicitors are deeply concerned, and in some cases striking. Of course these changes are set against a background of negative spin. Lawyers are the ‘fat-cats’ of Daily Mail lore and litigants ‘undeserving’ i.e immigrants, asylum seekers or prisoners.
Criticism of judges and human rights is nothing new. Some years ago the then Home Secretary David Blunkett trenchantly criticised judicial review. A cynic might be forgiven for noting that the very same arguments are being rehearsed today, only the names of the ministers are different. Be that as it may, there has been a recent ratcheting up of the often intemperate criticism of human rights and the judiciary. Indeed, these sorts of remarks have become a persistent background noise in British politics. This is dangerous territory for it risks undermining public support for the rule of law. Such criticism is often in the form of either an attack on the legitimacy of institutions or intended to paint the courts as dangerously divorced from reality. Thus we do not need to have recourse to such European institutions or the courts because Parliament should protect our rights and freedoms. Unelected judges should not make our laws etc. This form of criticism was levelled at the UK Supreme Court after the decision in the Sex Offenders Register case (R(F) v Secretary of State for the Home Dept  UKSC 17). Worse still is the argument that the European Court is full of ‘foreign judges’ who do not understand the human rights of Britons. And the Prime Minister has stooped to trivialising Strasbourg, claiming it behaves like ‘a small-claims court’. Then there are the claims that human rights laws are not concerned with justice but protecting the undeserving. From the so-called ‘cat-gate’ affair to the continuing saga over voting by some prisoners, human rights are continually portrayed in a negative light in a manner clearly calculated to undermine public support for the Human Rights Act. Meanwhile the man charged by the law of the land to act as a protector of judicial independence is happy to be seen as a partisan attack dog. Indeed, some commentators argue that as a result of all this criticism the European Court has decided to draw back from confrontation with the UK government. If so, where does that leave the rule of law and the protection of human rights?
Of course the real agenda here is to lay the ground in preparation for the repeal of the Human Rights Act and the UK’s exit from the ECHR if the Conservatives win the next general election. No doubt the Human Rights Act will be replaced with a new ‘legal framework’; in other words a purely declaratory bumper sticker bill of rights. Moreover, despite the minimal impact of the European Court there are a number of politicians floating the possibility of withdrawing from the ECHR from the Convention, even ridiculously on a temporary basis to deal with the problem of Abu Qatada. Quite what would happen to the Foreign Office’s policy of promoting human rights, the rule of law and democracy is anyone’s guess. But we may yet have a government that promotes human rights abroad, while denying them at home. Before then certain politicians are happy to defy the rulings of the European Court or to undermine in law the ECHR. Thus the Lord Chancellor himself has invited Parliament to defy the rulings of the European Court on prisoner voting. But sadly the Lord Chancellor’s views have widespread cross-party support, including from Jack Straw MP, who was in part responsible for the enactment of the Human Rights Act. Such is the contempt that British parliamentarians have for the international rule of law and human rights.
And then there is the rise of secret justice. This has been well documented and criticized elsewhere, but clearly the proposed use of secret courts raises serious implications for the rule of law. Part 2 of the Justice and Security Act 2013 contains a new ‘closed material procedure’. This procedure, dubbed secret courts by many, will require the judiciary to decide cases where one party will not be able to see or comment on the evidence that the other party uses; this will be seen in secret. Indeed, there may not be a hearing at all. The proposed derogation from the principle of open justice is unprecedented in peacetime. Moreover, even though the judiciary have never disclosed intelligence information in a case where a minister has relied upon a claim of public interest immunity Part 2 of the Act will also prevent the use of the Norwich Pharmacal jurisdiction in cases involving ‘sensitive information’. This will make it far harder in future to uncover serious official wrong-doing such as extraordinary rendition. This change to the Norwich Pharmacal jurisdiction is, as the Parliamentary Joint Committee on Human Rights noted, not consistent with the government’s commitment to the rule of law.
In his brilliant history of the Black Act 1723, Whigs and Hunters (1975), the Marxist historian E. P. Thompson famously praised the rule of law as ‘an unqualified human good.’ Whatever our individual political persuasions it ought to be common ground that, indeed, this is the case. Yet, as Henry Porter notes, adherence to such fundamental values amongst British politicians is increasingly rare.
*A famous line spoken by Marcellus in Shakespeare’s Hamlet, Act 1.