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ConDems attack rule of law with sledgehammer

The slide to outright authoritarian rule continues apace. Another assault on access to the courts system, this time through restrictions to the judicial reviews process, is a further nail in the coffin of the rule of law and thus to our democratic rights.

When access to the legal system comes to depend on wealth, as more and more it does, then the basis of justice is undermined. That’s the effect of ConDem policies to destroy legal rights carried out under the guise of “efficiency savings”.

Since April 1, legal aid has no longer been available for cases involving divorce, child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefit and education. A number of advice centres have closed as a result. An estimated 600,000 people will lose access to advice and legal representation.

Then there are the proposals to curb the rights of defendants to lawyers of their choice in criminal cases. These are so draconian that yesterday hundreds of lawyers based in the North of England effectively went on strike in protest. Instead of attending court, they held a day-long meeting in Manchester.
Leading trial prosecutor, Nicholas Clarke QC, says the proposals “will undermine the position of the independent bar, irretrievably and forever”. No defendant would be able to choose a firm on the basis of reputation or service.

Add in new laws providing for secret courts, you can see where this government is heading – at a rapid pace. Without pausing for breath, today the ConDems confirmed plans to curb the right to a judicial review. This is the process by which people and campaigns can – at their own expense – challenge decisions of public bodies, including the government itself.

It’s a relatively unsuccessful route. Last year, there were over 11,200 applications to the High Court and only 174 were successful in that the courts made orders against the authorities concerned. More than 8,500 applications were immigration and asylum cases, reflecting the harsh way the state and its tribunals treat people in the initial stages. Only 54 were successful.

Now the justice (or should that be “justice”?) secretary Chris Grayling has quadrupled legal fees and imposed tight restrictions on time limits for lodging applications. The aim is to dispel what it calls the "culture of using meritless judicial review applications". What is really behind this measure, however, is the determination to steamroller through planning and development plans.
Claire Norman, from the Campaign to Protect Rural England, said:

The financial costs alone were already prohibitive for environmental groups to address environmental wrongs, halving the time limit in which they can be made sends the message that the government really wants this safeguard removed altogether.

We need good quality development with public consent. This decision only works to undermine the credibility of the planning system, and removes one of the only means for community groups to challenge decisions.

Judicial reviews are a cornerstone of the independence of the judiciary and the rule of law – as opposed to the unfettered rule of the executive – which was set out as a principle in the Bill of Rights of 1689. They have grown in numbers since the 1980s as more and more people have fought back against public authorities.

The attack on legal aid and other measures has prompted the UK’s most senior judge to speak out. Lord Neuberger, president of the supreme court, said last month that cutting legal aid would “start cutting people off from justice”, which would be “dangerous”. While he was not saying that “the rule of law is going to fall to pieces” he added: “But I do think we have to be careful.”

Clearly Neuberger is concerned about the threat to the rule of law posed by accumulated changes in favour of the executive and against the interests of those who seek redress or need to defend themselves. He is right to be. The market state is not interested in justice but in getting the best price at the lowest cost. It’s another good reason to support the campaign for a new democratic constitution sponsored by the Agreement of the People for the 21st century.
Paul Feldman
Communications editor
23 April 2013

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