David Burrows questions the idea that politicians can grant a “right to justice”, as opposed to providing the means of access (such as legal aid) or removing the obstacles (such as excessive court fees) to a right we already have.

 

The Unison cake (see below)

 

The Right to Justice  (Fabian Policy Report, September 2017 ) (the Report) produced by an informal ‘Commission’ chaired by a labour politician (Willy Bach) provides a snappy – and potentially sinister – politician’s title for a serious subject. The idea that politicians can bestow a ‘right to justice’ is needlessly mixed up with the more serious subject of right to representation (or legal aid).

Most people in United Kingdom believe that they already have a right to justice; and so far as they believe that they are right. Politicians must not ever be permitted to interfere with it. ‘Right to justice’ is called a ‘fair trial’ in European Convention 1950 though the idea probably goes back 1,000 years before 1950. And, with the exception of the editor of the Daily Mail, most people probably think that justice is what British judges do very well (see eg the Miller case and EU withdrawal (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583) and the UNISON case (below). In these totalitarian (or ‘populist’ as the journalists call it) times we do not need to be given justice, or any right to it, by any politicians.

The extent to which the Report can be taken seriously may be judged – sad to relate – by the fact that almost the whole of page 13 is taken up with a picture of a gavel. Gavels have nothing to do with English law (though can be seen in films in use by US judges). In UK (as far as is known) only auctioneers use gavels.

Bach: areas of reform

The Report has three main areas of proposed reform:

  • It proposes a statute to enshrine a ‘right to justice’ alongside a ‘right to reasonable legal assistance’. These must be backed by a ‘Right to Justice Act’ and a Justice Commission.
  • It suggests reforms to the administration of legal aid; and a fairer scheme for means-testing reforms. It proposes changes to the scope of work which can be done on legal aid.
  • It urges greater education in law and access to legal information.

This article takes the second area first. A number of helpful reforms are proposed. Many are a welcome return to pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) conditions. A legal aid scheme has three elements: a means test (which the Bach proposals will simplify and make more generous to applicants); a scope test (what proceedings will be covered by a certificate: the Report proposes extensions to this); and a merits test (does a case justify the tax-payer spending money on it?). The merits test has become increasingly complex (see now Civil Legal Aid (Merits Criteria) Regulations 2013), especially since Access to Justice Act 1999.

Calculating the merit of a case, within the terms of the merits regulations is hard for a lawyer. It must seem prohibitively difficult for an intending legal aid applicant. If this report is to be taken any further those who deal with it must address the complexities of the merits test. They could start – and even finish – with what was in Legal Aid Act 1988 (and earlier legal aid acts) for relative simplicity.

‘Right to justice’

‘Right to Justice’ is a political slogan. With its proposed ‘Right to Justice Act’ and ‘Justice Commission’, it recalls George Orwell’s Nineteen Eighty-Four. The idea that there could be a ‘Justice Commission’ where hitherto justice had been the preserve of the judiciary is straight out of Orwell. And Orwell would have been the first to point out, that what a politician gives another politician – especially in these increasingly totalitarian times (the modern Tory party want to control Parliament in a way not justified by its minority standing; and the Labour left seeks to increase its sway within the Party) – can take away.

One thing our judges do very well is justice. They do not need a commission to ‘guide’ them. Indeed the idea that Parliament should contemplate such a thing is constitutionally abhorrent. Politicians have sheared off rights already: LASPOA 2012 and benefits reforms are two obvious examples; and the National Health Service seems likely to follow. Judges seek to constrain politicians. In a country governed by the common law, their ability to provide a fair trial – justice, ‘right to a fair trial’ – should not needlessly be surrendered to politicians.

In the recent case of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409 [in which the Supreme Court held that employment tribunal fees, set at an unaffordable level by the Lord Chancellor, were unlawful under both domestic and European Union law because they prevented access to justice], Lord Kerr (at [66]-[85]) gives a brief background to justice in England and Wales, now in the United Kingdom as a whole.

Many in England have had access to justice since Anglo Saxon times; and certainly since Magna Carta (1215). By the 1620s Sir Edward Coke wrote of the right of ‘every subject of this Realme, for injury done… by any other subject may take his remedy by the course of law, and have justice’. For Blackstone in his Commentaries (1765-1769) it was the ‘right of every [man] of applying to the courts of justice for redress of injuries’. Both of these writers used the term ‘justice’. There was no need to justice, or the right to it, to be created or defined by statute.

Justice against totalitarianism

Justice is a judge’s job. It is developed by the common law. As Lord Kerr explained, at [68]:

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’.

Justice, by another name, is a ‘fair trial’. The European Convention on Human Rights 1950 declares – it does not create – the existence of a right to a fair trial (Art 6.1). The Convention was the work in large part of British common lawyers. They were well aware of the long-standing right to justice which was a fundamental part of our common law. They needed no act of parliament to create that right. It is something which comes anyway, and as a matter of right, as a result of living within the jurisdiction of the English courts.

This country does not need another quango in the form of an Orwellian ‘Justice Commission’: to provide ‘guidance’ or ‘monitoring’ to judges. Judges have extensive case law to guide them. If they need to be ‘monitored’ that is already done by appellate courts. And a commission could be more sinister. In times of encroaching totalitarianism (Trump in the US; the AfD in Germany; the nationalist parties around Europe) then any right with which politicians can interfere must be guarded very carefully; and especially so if they plan to interfere with the judiciary. Scope of legal aid is for the politicians to decide upon. They must never be allowed to tamper with the scope of justice.

If by a ‘Justice Commission’ is meant someone to keep an eye on the operation of legal aid; then insofar as the legal aid administrators fail to do that, should not MPs do it themselves?

Right to legal representation

What this report is trying to do to is to redevelop the right to legal representation (ie legal aid) which was so drastically cut back by LASPOA 2012. A Legal Aid Act or a Right to Legal Representation bill, may not provide the politicians with such seductive titles; but this is what is wanted. ‘Right to Justice’ as a slogan is silly or sinister, according to the way things go. Legal representation paid for by the tax-payer is what is proposed.

Politicians are entitled to make political decisions on legal aid; whilst any ‘right to justice’ must be out of bounds to them. Politicians can decide on the extent of each of the tests of eligibility for legal aid: means, merit and scope. These are the political variables. Where does the political cursor stop? The Tories have made the means test more miserly. LASPOA 2012 has made the scope test both narrower than before, and absurdly complex (beset by legislative double and triple negatives). Superimposed on the scope test is an increasingly more obscure merits test. If clarity and accessibility by the public, where individuals must rely on it, is the test of good modern legislation the Tory legal aid legislation fails spectacularly.

This aspect of the Report is imaginative. It proposes return of legal aid for a number of areas of litigation, including aspects of children law; housing and immigration; and for judicial review and inquests. Representation by specialist lawyers is what defines legal aid. It is that which is so precious to the rights of ordinary people. As legislation and case law accrete, so the law and its application become more complex.

Lay education in law

Finally, the Report emphasises the importance of education in law for the general public. The internet provides access to the raw material of law which is impressive: Government web-sites (eg for legislation – not always up-to-date – and other government material) and BAILLI reports provide a superb array of source material. For the lay person – and indeed for many lawyers – the problem is that is undigested. BAILLI cannot provide head-notes to simplify the presentation of case reports: how could they? Statutory material fresh off the page is rarely easy to digest.

Yes, education in law should be provided; but that is a matter for the education departments – with help from lawyers – not for those concerned with the operation of the law. But to ease education in law, first more clarity is essential.

Lord Bingham’s first rule in his Rule of Law (Penguin 2010) was that ‘a law must be accessible and so far as possible intelligible, clear and predictable’ (pp 37-38). You must know, and that means understand, what the law is if you are to rely on it. Rights are only real if you know about them. Is my child entitled to school-transport; can I do anything about the leylandii my neighbour has planted and which is blocking my view; what right do I have as a child to express a view in my parent’s proceedings about me? Each of these may create rights for the person concerned; but they are not rights if that person does not know exactly what they are and how to do something about them.

This requires two things: clearer laws with more straightforward legal procedures; and, where need be, a right to legal representation for those who cannot otherwise afford it. The second – legal representation – is a question for legal aid. The first, clarity of law, is a massive – but fundamental – subject. Even if only at a preliminary (ie pre-advice) stage, an individual should know of rights. Otherwise that individual will not know that there is something to see a lawyer about.

A right is no right if you cannot understand the law which defines it

If you have a pain which does not get better, you can go and see a doctor. Under the UK National Health system the consultation is free. If you have a right which is being interfered with – or, like school transport, may not be being properly dealt with by your local authority – you need first to know there is a legal pain which could be made better. If you do not even know it is a treatable pain, because you do not know you have the right in the first place, your life is needlessly, or unfairly, the poorer.

So first, the need is for a Legal Aid Act; or a ‘right to legal representation act’, or even an ‘access to justice act’. Call it whatever the politicians will, so long as it is not called, still less that it pretends to give, a ‘right to justice’. Secondly, whatever the right to representation act is called, let it be written clearly. Anyone – including a child who, for example, wishes to know what legal part she or he can play in the child’s parents’ court proceedings over the child – must know that they have the right to seek legal advice if their income is such as to justify free legal assistance; and that, if need be, they can apply to a court for help.

If a person has a right to representation but cannot understand the triple negative law that defines that right, it is not a right.

 

This article was originally appeared on David Burrows’s blog, dbfamilylaw blog on 25 September 2017 and is reproduced with permission and thanks. 

The Magna Carta cake in the image above was provided by Matrix Chambers for a celebration event held by Unison on 14 November 2017 to mark their Supreme Court victory in the tribunal fees case mentioned in this article.