ACCESS TO JUSTICE

President of the Supreme Court Lord Neuberger closed the Global Law Summit last month by concluding that “genuine access to justice is crucial” if a society is to “maintain adherence to the rule of law”.   A lofty ambition indeed, the more so where genuine access to justice simply does not exist in 98% of those countries attending the Summit who may well pay lip service to these sentiments whilst persistently ignoring them.

Since government cutbacks, especially in legal aid, there are many civil litigants who feel they are being denied “genuine access to justice” because they can’t afford the court fees and legal costs associated with instructing a barrister or solicitor.  Some simply fall by the wayside, living with what they perceive is a manifest injustice and an enormous chip on their shoulder, and get on with the rest of their lives. Others decide to chance their arm with the system and represent themselves. Gawd help us!

The litigant in person is the bane of the legal system, and frankly, a giant pain in the derriere.  The judge feels incumbent to help him as much as he can, which runs contrary to the principle of ‘equality of arms’ in the legal system.  This help ranges across the entire spectrum, from how not to ask a leading question, indeed, what is a leading question?  How to cross-examine a witness by putting questions for him to answer rather than making unfounded assertions of fact.  And most important of all, the golden rule drummed into every wannabee advocate at law school, from his first lecture on evidence and procedure, when NOT to ask a question and when to shut up and sit down.

Courts are expensive to run and maintain.  On average, a court costs in the region of £9000 a day to function, and I suspect Lord Neuberger’s court a good deal more. As somebody once said, and it could have been me, time is money. A few years’ ago, I was involved in a civil hearing with a litigant in person.  The time estimate was one court day.  The hearing lasted a full four days spread over several months, and guess who picked up the tab for this monstrous overrun?  You did.  By that, I mean the long-suffering taxpayer.  And the irony of it was that if a qualified advocate had been instructed, the taxpayer would have saved himself £27,000 and a severe test of his patience.

A further sad irony in this shambles is that both legal professions, solicitors and barristers, are grossly oversubscribed and weighed down with the unemployed.  Somebody calculated recently that there is now a lawyer for every four hundred of the population, so these litigants in person are spoiled for choice. So why not give an unemployed lawyer what was once called a dock brief, he turns up, spends one hour flicking through the papers, and then he’s off and running, with brevity his watchword. We can then all nod reverentially towards Lord Neuberger and his lofty ambitions, the Lord Chancellor will be as pleased as Punch over the saving of court time and money, and with goodwill on all sides, we can claim to have done our bit to maintain the rule of law.

BE GONE

I suspect I am not alone in applauding Teresa May’s efforts to deport undesirable illegal immigrants, as she has been attempting to do for several months.  A few undesirables stick out like a sore thumb, or in one egregious case, a sore hook.

Her proposal is to ‘clarify’ the provisions of the Human Rights Act for the benefit of the judiciary, and to ‘instruct’ them on thorny issues such as the right to a family life.  This has been pleaded successfully by at least two undesirables, one who had fathered a child whilst awaiting deportation, and the other who had formed a close attachment to a cat.

The problem faced by the Home Secretary is that the judiciary cannot ignore the European Convention on Human Rights, enshrined as it is, and has been since 1998, in our domestic legislation, and likely to remain so until the next General Election in 2015.  High on David Cameron’s wish list in 2015 will be a mandate from vox populi to lead a Conservative administration unshackled by the Liberal Democrats, and wait for the walls of Jericho to come tumbling down.

Far too often in the recent past, we have seen decisions of our domestic courts overturned by the European Court of Justice, and this is going to happen, time and again, unless and until we repeal the Human Rights Act.  Whether or not we replace it with our own Bill of Rights is academic, and a distraction from the main event.

In the meantime, whilst Mrs. May’s ‘instructions’ to the judiciary play well to Middle England, they are nothing more than empty political posturing.  Of greater concern is that they have the potential of undermining the rule of law and casting the judiciary in the role of pantomime villains.

It is tempting to adopt the approach favoured by the French and Italians.  If the face doesn’t fit, put the undesirable on the first plane back home and let the Devil take the hindmost.  It plays well with the crowd, but it does them no good in the eyes of fair minded people. It’s wrong and unjust.

Repeal, reform and clarify by all means, but don’t play political football with the rule of law.  That could lead to a penalty shoot out, and on present form, we’ll go down like a lead balloon.