Hallmark of civilisation

Some countries will soon come under a legally enforceable duty to provide ‘legal aid services of a quality… adequate to safeguard the fairness of proceedings’. But legal aid practitioners should not get their hopes up. Even before the Brexit vote, our government opted out of the EU Directive for Suspects and Accused Persons. There remains the question of what standards we do wish to apply.

Do not put too much reliance either on the requirement that: ‘Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

This is Article 47 of the Charter of Fundamental Rights and Freedoms, and Brexit will soon make it little more than a historical footnote for the UK.

Nor should too much weight be put on the statement that ‘everyone is entitled… [in criminal cases] to free legal aid if he has not sufficient means to pay for legal assistance… when the interests of justice so require’. This is Article 6 of the European Convention on Human Rights. In April, Theresa May said that we should leave the convention because it ‘can bind the hands of parliament’.

The common law has always struggled over statements of principle; something which may ultimately go back to the battles between the codifying Romans and their less logically inclined enemies. In more modern times, even Labour’s Lord Goldsmith was never happy with the EU’s fundamental charter and argued, ambitiously, that it restricted rights rather than extended them. UK governments of all persuasions have been shy of binding international commitments.

And, let’s face it, this has its upside: parliamentary democracy has, on occasion, empowered MPs to take responsibility for fundamental reform. Parliament abolished the death penalty as a democratic decision in 1965. The Council of Europe only transposed this into a legally binding instrument in 1982.

If, however, every codified obligation in the UK’s de facto constitution is to be swept away, what of any obligation on access to justice? There remain three possible sources.

First, there are such rights as might otherwise be part of our law, mainly in relation to fair trial – for example through surviving parts of the Bill of Rights or Magna Carta.

Second, there are those rights which have been absorbed into the common law (manifesting in ‘common law constitutionalism’) though they would be subject to the supremacy of parliament. ‘The development of the common law did not come to an end on the passing of the Human Rights Act 1998,’ as Lord Justice Toulson said in Guardian News and Media Ltd v City of Westminster Magistrates’ Court [2012] EWCA Civ 420.

Third, there are constitutional rights accepted by ministers of all parties as matters of, effectively, constitutional convention.

The last time any lord chancellor made much of a reference to access to justice was in November 2010. Ken Clarke said: ‘I genuinely believe access to justice is the hallmark of a civilised society.’ Regrettably, this was in the context of justifying the LASPO cuts. This is, of course, the difficulty. The principle is fine; the money is tight; no minister wants to give hostages to fortune – or litigation.

However, there would be some advantage in Liz Truss and her rivals agreeing perhaps on just two general principles to underly justice policy: fair trial and access to justice. You might think that there would be little point beyond tokenism. But there are advantages in explicit recognition of access to justice as a constitutional right.

UK governments of all persuasions have been shy of binding international commitments

For a start, a paper such as Transforming our Justice System would at least have to consider our court system from that point of view – something startlingly absent. The other point is a little paradoxical – the galvanising impact of an overriding objective. It is an overworked truism to point out the disruptive effect of new technology. But developments like those proposed for online courts throw in the air traditional mechanisms of court assistance.

An online small claims court needs to integrate with the online and offline provision of advice and assistance. Organisations like Citizens Advice and the Law Centres Federation need to be stitched into a harmonious web of provision. So should lawyers be.

But conceiving policy in terms of legal aid just leads to ministers asking how much more it can be cut, to which the answer will be much more if international standards are thrown on the pyre. Ministers need a much more holistic view of the modern provision of access to justice that crosses existing departmental borders.

We need lord chancellors of all parties and their rivals to accept access to justice as a constitutional goal, on the delivery of which they may differ politically. But we all need to agree that it should be a hallmark of a civilised society – ours.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice