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It is tempting to assume the permanent stability of our legal system because it has been entrenched for so long, and it would be wildly alarmist to suggest that we are about to experience the kind of breakdown which has devastated Syria, or which now threatens the people of Egypt. Nevertheless, a series of blows struck by government at those who seek to uphold the rule of law pose a serious potential threat. We need to view them collectively. Consider the following: severe restrictions on the availability of legal aid; increased fees and procedural hurdles for those who seek to assert and defend themselves in the courts, especially when they challenge government decisions; the use of secret evidence which precludes challenge; reductions in legal costs payable to those who bring successful claims; increasing surveillance and access to personal and private information; increasing privatisation of resources with reduced public accountability. These and other measures ostensibly aimed at security, efficiency and economy combine to restrict the autonomy of the individual and reduce access to justice. Whether these are elements of a deliberate strategy or mere coincidences, there is a pattern which is undermining the rule of law. Of course, our rulers constantly claim their absolute commitment to this fundamental value, but we need to disregard the rhetoric and focus on what is actually happening.
Defining the rule of law
What does the rule of law mean in a modern democratic society? Governments tend to regard it as little more than a licence to direct and control their citizens at will. But if it is not to be a mere instrument of dictatorship it must protect citizens against the arbitrary and unjust actions of government. At its heart lie fairness and equality of respect for human dignity.
Lord Bingham is a sure guide. In his masterly book he lists and elaborates the essential components of the rule of law (Tom Bingham, The Rule of Law, Allen Lane, 2010). First of all the law itself must provide adequate protection of human rights. That means the substance of the law. But most of the elements of the rule of law which he identifies relate to process and the practicalities of implementation. The law must be accessible and, so far as possible, intelligibly clear and predictable. Legal rights and liabilities must ordinarily be resolved by application of the law and not the exercise of discretion. The state must provide means for resolving disputes without prohibitive cost or inordinate delay. And—perhaps above all—adjudicative procedures provided by the state must be fair.
No level playing field
But how can there be fairness without a level playing field? As the EU Charter of Fundamental Rights says: “Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.” And of course Art 6 of the European Convention on Human Rights guarantees the right to a fair trial.
Of course, Bingham acknowledges that legal systems can vary without violating the rule of law. In Britain adjudication in the courts follows an adversarial model. The judge sits above the fray while the parties in turn present their arguments and evidence, after which the judge or jury determine the outcome. The judge is under no obligation to step in and help one of the litigants. Indeed, judges have been criticised and appeals won because a judge stepped too enthusiastically into the arena. In other European countries the judge usually has an active investigative or “inquisitorial” role, including a positive duty to discover the facts regardless of what the parties may choose to argue or reveal.
The very experienced judge, Mr Justice Lightman, now retired, explained some disturbing features of the adversarial system in his forthright and perceptive Edward Bramley Memorial Lecture at Sheffield in 2003. First, success or failure may depend on performance on the day of the trial. The litigant has his or her “day in court” and may not demand a replay. An appeal may not correct accidental mistakes. Second, that performance often depends on the investment made in preparation, and, of course, as Lightman says “at all stages in the litigation, money talks loud and clear”. Third, he points out that cases are won and lost by reason of the quality of representation at the trial. “Common experience”, he says, “reveals how unbalanced the legal process is at all three stages between the haves and the have nots—the scales of justice favour those who can afford to buy it.”
Doubtless this was how it was meant to be in the long distant past when the legal system was there to serve the interests of the ruling class. If it is to work in a democracy the playing field has to be levelled. That is why legal aid is an essential element in our society, central to the rule of law.
Legal aid is owed to citizens
To turn to Lord Bingham again. He quotes another writer (Dr EJ Cohn) with approval as follows: “Legal aid is a service which the modern state owes to its citizens as a matter of principle...The state is not responsible for the outbreak of epidemics, for old age or economic crises. But the state is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the state to make its machinery work alike for the rich and the poor.”
Bingham describes the denial of legal protection to the poor litigant who cannot afford to pay as “an enemy of the rule of law”. Echoing Lightman, he contrasts the adversarial procedure, heavily dependent on expensive lawyers preparing presenting and arguing the case, with the civil law system where the role of the lawyers (paid by the parties) is much smaller and that of the judge (paid by the state) much larger.
According to the government’s own figures, 623,000 of the one million people who have benefited from legal aid will be denied it as a result of the Draconian cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect on 1 April. The judiciary anticipated a vast increase in the number of litigants in person. They prudently established a working party to consider the implications and it published its report earlier this month. Their report deserves fuller consideration than can be given here but one of their key recommendations is that the Judicial Office should urgently undertake further work to assess the merits of the proposal that courts should be allowed to direct that proceedings “should be conducted by way of a more inquisitorial form of process”. The working party also recommends the investigation of the merits of a specific power that would “without creating a fully inquisitorial form of procedure, address the need of litigants in person to obtain access to justice.”
At the same time, the chairman of the Bar is calling for a total review of the entire legal aid system, but apparently she is not calling for the replacement of the adversarial system of justice by an inquisitorial system.
A serious situation
The tentativeness of these approaches to a serious situation is striking. Switching to a system favoured by other European countries would be a provocative step to those who question European influence in our legal affairs. And the adversary system provides work and fees for lawyers on a scale which they could not hope to match in an inquisitorial system. That of course is precisely why the latter may be in the public interest.
The legal profession is right to campaign vigorously against the legal aid cuts and those other changes which undermine the rule of law. The role of the independent lawyer representing the vulnerable and the disadvantaged remains vital and should be strengthened. It deserves at least the priority given to those public services which are “ring-fenced” to protect them from financial disaster. But it is also important that the profession should be prepared to embrace reforms which can reduce cost without a detrimental impact on access to justice. Reforming the adversarial system is a possibility which needs the fullest examination and the widest consultation which must not be inhibited by the economic interests of the legal profession.
Crossposted with thanks from New Law Journal.