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Whose responsibility is it to maintain the rule of Law?

The format of the event at which I am to speak today might proscribe much of that which I would wish to say. I am fairly confident that not many of you will be in the audience today. So I thought it useful to set out some headlines.

At its simplest Government, through the Minister of justice, is responsible for the rule of law and its maintenance. The Constitutional Reform Act of 2005 removed the need (inter alia) for the Lord Chancellor to be a Lawyer. This is the product of a Labour Government. Since the Act we have had 3 Minsters, Jack Straw (member of the Bar with limited experience, Ken Clarke QC for a short time and since 2012 Chris Grayling MP – the first Lord Chancellor in history not to be a qualified lawyer. The various enquiries into this situation have always stressed that despite the removal of the statutory requirement to be legally qualified what is important is belief in the rule of law and a desire to uphold it against the needs for political expediency. This year Dominic Grieve QC, perhaps the one lawyer with substantial experience in cabinet was removed from office – along with Oliver Heald QC to be replaced by Jeremy Wright and Robert Buckland; both were appointed QCs immediately to enable them to occupy their new found positions at the head of our profession.  This history does not give one great confidence that successive recent governments have been that interested in the rule of law.

Magna Carta

“To no one will we sell, to no one deny or delay, right or justice”

It is the foundation which underpins a free society. It is the beating heart of our criminal justice system, said to be respected and renowned the world over. 

Access to justice is the fundamental pillar of a free society. Without access to justice there can be no rule of law. Without meaningful access to Judges and the Courts there is anarchy.  Societies that function under the Rule of Law do so because they have the consent and support of the population.  What underpins that consent and support?  In simple terms a sense that everyone deserves a fair and just forum in which they can have their rights protected and upheld. None shall be subject to the exercise of arbitrary executive power or be disadvantaged through a lack of financial means – whether those rights relate to property, privacy, family life, or their liberty.

The GLS

This is a summit at which senior politicians, law makers and big business from around the world has gathered.  Much has been written recently about the growing inequality of the distribution of wealth in this century.  All those around the world who gather here, or at Davos or at the G14, or wherever power and wealth appear increasingly to be concentrated, should reflect carefully on what may happen if the people begin to believe that their justice system is loaded against them and the people begin to lose confidence that the ordinary man or woman can get a fair hearing when the need arises. 

These are my thoughts:

• It is no good championing the principle of access to justice, whilst dismantling the mechanisms by which the common man achieves it.

• It is no good claiming ‘To no one will we sell Justice’ if a two tier system of justice evolves where those who can pay get access to justice, and those who cannot, do not.

• It is no good saying we will not delay justice, if our criminal justice system is so chronically underfunded, or overstretched, that delays become endemic.  When the courts are underfunded, courts sit empty and trials get delayed. These delays let down those accused of crime, entitled to have their case heard promptly. Just as importantly, they betray victims of crime for whom justice delayed is no justice at all.

When one considers ‘Access to Justice’ there can be no more important group to have such access, than those whom the state seeks to try.  Championing these rights will never be a vote-winner. It will never be politically astute to champion the rights of the accused, rather than the rights of victims, but that ignores the reality that victims want justice too. There is no justice if delays mean a case takes too long to be heard and witnesses memories fade as they wait too long to tell the story of what happened to them. There is no justice if the wrong person is convicted of a crime. There is no justice when someone falsely accused cannot fairly put their case. There is no justice where the ability to access justice is unfairly restricted.

We have a system where if accused of crime, your first point of call will be a solicitor. Currently there are around 1700 firms, contracted to provide such advice. It is proposed that these will be cut by 2/3, to 527 contracts.  This will probably mean about 2-300 firms survive.  The trusted local High Street firm of solicitors is likely to become an historical curiosity than a feature of our land. In their place will become the conglomerate, the franchised or branded “services company”.  They will bid either because they wrongly believe that through economies of scale they can make a profit at the paltry and reduced rates offered.  More likely they will do so because they have deep enough pockets to make a big loss for a year or two and then tell the Government that the contracts are uneconomic and that they must increase the rates.  The competition will have been removed and the large company will (once again) be in a position to hold the Government to ransom.  Meanwhile in place of qualified solicitors, one will receive advice from less qualified paralegals. Savings which used to be achieved through an accused listening to the advice of his trusted solicitor of choice will be thrown away on the altar of ‘market consolidation’.  Unable to receive trusted advice, people risk contesting trials where once they might have pleaded guilty. Even worse, unable to make contracts pay should too many trials go ahead, there is a risk that perverse incentives may come into play and people will be advised to plead guilty, not because they are, but because it becomes profitable were they to do so.

It would be wrong and misguided to believe that these reforms which appear to impact only on solicitors, appalling enough as that would be, would not also affect the bar. With more advocacy work inevitably being taken in-house by these new entities, the junior bar will wither on the vine and die out. With no junior bar, there will be no senior bar and should this come to pass, then from where will come our next generation of judges in the family, county and crown courts?

The Criminal Justice system in our land functions because of the cooperation of bench, bar and solicitors without that cooperation the system would grind to a halt. Only on Saturday it was my privilege to attend at the Old Bailey to observe and take part in a “training the trainers” day run by the ATC. Government have said that all who have to deal with vulnerable witnesses must be trained so to do.  Have they funded and provided a scheme? No.  Once again it falls to the legal profession to fund and develop governments’ desires. Men and women giving up huge amounts of their free time, unpaid, unrewarded doing public service because they believe in the rule of law. It is a sadness that this reflects the reality of daily practice within our courts today.  Every day, members of the junior bar turn up to do hearings unpaid. An arraignment, where important advice must be given – is unpaid. A complex disclosure hearing, necessary if justice is to be achieved – it’s unpaid. A sentence hearing, where the liberty of an individual is at stake, which can last several days – it’s unpaid. Every day, the independent bar, or Higher Court Advocates, turn up, unpaid, to see that people obtain access to justice.  They have continued to do so because they are seasoned professionals who care deeply.  But they have reached the end of their tether.  Droves of the young are leaving and the professions are being hollowed out as increasingly people do not believe there is a future in publicly funded work.  And why should Society expect talented students laden with debt to take a career path that promises so little? 

Following cuts to legal aid and in the family courts, the presence of lawyers is becoming a rarity. The consequences should be of concern to all.  Hearings take longer as bad points are taken by members of the public unassisted by lawyers, leaving the judiciary to have to pick up the pieces. Costs may be saved in legal fees but the costs elsewhere (in Judicial time) explode.  Perhaps worst of all other litigants – even those who have been able to pay for their own lawyers – have their cases delayed as Judges are tied up with cases that take longer and demand more of their time out of Court.  There can be no clearer demonstration of this than what our senior judiciary has been driven to say, most recently perhaps in the recent case of Lindner-v-Rawlins (EWCA Civ 61).

Lady Justice Black

[31] I cannot leave the matter without making two further observations. The first is directed to the parties. More than two years have now elapsed since they separated. They could now be divorced by consent without the need to engage in hurtful, time consuming and distracting litigation over how they behaved during the marriage. I encourage them to take this course in their own interests and those of their children.

[32] The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

Lady Justice King:

[33] I agree.

Lord Justice Aikens:

[34] I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented. Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it. 

There is a real risk that through government reforms, what we see and despair of in our family courts, may yet become a reality in our criminal courts. The unrepresented defendant is not a figment of the imagination of the angry criminal practitioner. Sections 35, 36 and 38 of the Youth Justice and Criminal Evidence Act of 1999 and part 31 of the Criminal Procedure Rules are real and alive.

The Legal Aid Act 1949

“We observe today, not a victory of party but a celebration of freedom”.

These are the words of John Fitzgerald Kennedy, whose memorial, rightly, is at Runnymede itself, nearby the American Bar Association monument to Magna Carta recognising its importance to the US constitution. But those words, ones that woke America up in 1960 are as apt today, and in particular as they were then.

The European Convention on Human Rights, whose direct lineage can be traced by to Magna Carta, was the product, in many ways of a Conservative Party pen, that of Sir David Maxwell Fyfe, at the time Shadow Attorney General and later Lord Chancellor.  But it was supported by both Labour and Conservative politicians

Such men put country above party.  They put the ideals of rights of individuals above the narrow interests of country.  They had seen at Nuremberg what can be done in the name of man and wished to see a higher body, through the Universal Declaration and then the European Convention, be a beacon to all of those around the world.

They believed in the rule of law.

But, they were not just supporters of human rights.  They believed that the rule of law should be accessible to all.  The old maxim that the HM courts are as open to public in the same way as the tea room as the Ritz Hotel is open to them, began to ring hollow in 1948.  So when the Legal Aid and Advice Bill was introduced in 1948, it received the full and unconditional support of Major Sir David Maxwell Fife for the Conservatives. Indeed, at 3.50pm on 15th December 1948, when he introduced Bill to the House of Commons, with Sir Winston Churchill in attendance, he quoted, in his first paragraph to the House, the now totemic line from the Great Charter “To no one will we sell, deny or delay right or justice”. Old words for a new time.

So legal aid, the European Convention and the Universal Declaration were all brought into legal life, not by those seeking to make political advantage, but those wishing to enhance the rights of man.  They were noble times.

“Access to justice” belongs alongside “access to education” and “access to health” as the essential pre-requisites of any free society.  It is no less important and it is time that all politicians of all political parties recognised this.  We do live in an age of austerity. There are difficult decisions for any government to face.  But spending on legal aid has already plummeted in recent years and enough is enough.  It is time to ‘ring-fence’ funding for Legal Aid.

What has happened over the last few years has stretched our system to breaking point. Some parliamentarians have begun to recognise that much of what has been done has been deeply flawed.  In a recent Report entitled “Implementing Reforms to Civil Legal Aid”^[1] the Public Accounts Committee of the House of Commons has been scathing about the way in which the Ministry of Justice embarked on significant reforms without proper evidence and was plainly driven only by a need to meet the Treasury’s demands for lower spending.  The consequences and damage done is still, it would appear, not properly understood.  The damage still not properly understood or measured; and the lessons still not learnt in the civil justice field risk being repeated in our criminal justice system if any Government chooses to go ahead with the further threatened cuts and restructuring of the solicitors market. 

Further cuts to civil or criminal legal aid imperil access to justice and threaten the very freedoms which it is our government’s duty to uphold and protect. 

My presence at the GLS

There are some who said I should not speak here today. That instead I should be protesting outside this hall alongside solicitors and barristers whom it is my privilege to represent. I disagree profoundly. Dialogue and engagement with Government is positive and to be encouraged and there are signs that Government understands our concerns.   I believe the message I have to deliver is an important one and one I will repeat anywhere, before any audience. The message is clear. Turn back from your intended course. Should you fail to do so, you not only risk denying access to justice but also risk turning the Magna Carta into a parchment worthy only of note to historians, instead of the foundation of our freedoms of which we are so proud.

Tony