The UK Justice System is at Risk
In 2019, justice and the rule of law are at risk. The current political climate is rife with instability and is therefore, having a profound effect on the justice system. Since the 2016 European Union Referendum, UK citizens have been forced to question the political and judicial mayhem that followed the Brexit vote. However, despite Brexit igniting this conversation, the current UK justice system reflects an area of disarray towards the European Union and the preservation of human rights. Consequently, this poses a momentous threat to the justice system.
Lord Wilson’s lecture on the global responsibility and joint effort required to protect human rights, addressed the UK’s reluctance to be governed by the European Convention on Human Rights, signed in 1950. This convention was designed to protect inherent human rights and political freedoms that were so abhorrently violated during World War II. However, according to Supreme Court Judge Lord Wilson,
“the prevalent view in the UK, arrogant [he] fear[ed], was that although we didn’t have a comprehensive Bill of Rights, the common law and Acts of Parliament had already combined to give us ample protection in terms of human rights and that our obligation under International law to ensure enjoyment of rights under the Convention in effect added nothing.”
However, in 1998, shortly after being appointed Prime Minister, Tony Blair expedited Parliament in passing the Human Rights Act. It ensured that the European Convention was cemented in UK domestic law. The Act “enable[d] everyone in the UK to enforce their Convention Rights in UK Courts; only if they are then still dissatisfied, can they approach the Court in Strasbourg” (Wilson). The Act made it “unlawful for a public authority, including a Court, to act incompatibly with a Convention right” (Wilson). Despite the Convention now being ingrained in domestic law, there is still controversy between UK Courts and the Strasbourg Human Rights Court, highlighted by Soering v United Kingdom (1986). The Human Rights Act deemed that in determining an issue in relation to a Convention right, UK Courts must take into account precedent established in Strasbourg.
Wilson believed that the “groundswell of objection in the UK to human rights in general, and to the jurisdiction of the Strasbourg Court in particular, whipped up by a powerful populist press”, stemmed from the right under Article 8 of the Human Rights Act (UK) to respect one’s ‘Private and Family Life’. Under Article 8, “foreign criminals facing deportation; failed asylum seekers facing removal; alleged criminals facing extradition” could rely on the presence of their partners and children in the UK, in order to make a claim that their enforced departure would violate their right to respect for their family life.
Evidently, Article 8 has proved to be incredibly contentious. The Article has the ability to inhibit ‘Freedom of Expression’ under Article 10. Lord Wilson predicted that within the UK:
“The tension between the preciousness of free speech and its destructive potential will become more acute. Facts can now apparently be alternative. We are told that truth isn’t truth. False messages are given to voters who have no reason to doubt their truthfulness and no ability to verify them. Untrue statements are insinuated into our newspapers and social media with a view to the manipulation of our thought for hidden ulterior purposes. Stemming this tide will be a huge challenge, in which concerted legal action at the international level can play a part, along with communicators, educators, religious leaders and other role models” (Wilson).
Therefore, clear communication is needed in order to save the justice system and the rule of law from those that perpetuate false promises under the supposed protection of ‘Freedom of Expression’.
Furthermore, despite heightened standards in the UK regarding public authorities’ treatment of all its citizens, especially the traditionally disadvantaged such as women, immigrants, ethnic minorities, homosexuals and mental patients, human rights are nothing if they cannot be enforced. Since 2008, the UK government has dismantled almost half of the legal aid system, which was introduced in 1949 along with the other two pillars of the UK’s Welfare State; social security and the NHS. This is incredibly disconcerting! Wilson believes that the “disadvantaged need to be acquainted with their human rights and helped to enforce them; but they are unlikely to be able to do so without free legal advice and representation”.
‘The Big Legal Lesson’ created by Young Citizens has the ability to help those who may not always have access to justice, understand how the current justice system does benefit them, despite the economic impediments since 2008.
Despite being obligated to provide legal aid, the UK is “dismantling it indirectly by setting rates of remuneration for the lawyers at levels so uncommercial that reluctantly most of them feel unable to do that work”. This has resulted in the lower courts overflowing with litigants, who reluctantly and poorly end up representing themselves. Subsequently, Lord Wilson questions the value that is placed on legal advocates who appear on behalf on their litigants, pro bono. Is protecting human rights not worthy of paid work?
An investigation conducted by The Guardian newspaper found that “deep cuts to legal aid have inflicted such disarray”, particularly in family courts, where parents are being forced to abandon custody battles because without legal aid, they can’t afford litigation fees. Since 2012, the number of people receiving legal aid has fallen by more than 80%. (Specifically, 88% in relation to family matters.) This has resulted in the following injustices occurring in UK Courts:
- Courts being swamped with unrepresented litigants, discouraging many from continuing with proceedings;
- Victims of domestic violence being forced to be cross-examined by ex-partners;
- Hundreds of thousands of people have been prevented from pursuing justice in other areas such as housing, debt, employment, clinical negligence, immigration, welfare payments and education; and
- Financial eligibility thresholds have not been updated, which has resulted in dependents in work not being able to claim legal aid in criminal cases, thus sparking fears of a miscarriage of justice.
Not only has the reduced funding of about £950m-a-year caused problems inside the courts, it has also had a ripple effect on UK law centres. Half of all law centres and not-for-profit legal advice services in England and Wales have closed over the last seven years. In 2013-14, 94 local areas with law centres or agencies offered legal services. By 2019-20, this number has fallen to just 47.
Moreover, qualifications for legal aid have become even more exclusive. The minimum annual earning budget has gone from £23,000 to £37,000. This significant increase makes access to justice more of an impossibility for those who do not earn the required amount. Is a UK citizen’s access to justice based solely off their economic value to society?
Former Chief Justice Lord Thomas of Cwmgiedd spoke out about the harm caused by these “budget cuts”. The Ministry of Justice has endured deeper cuts than any other Whitehall department since 2010. Lord Thomas maintains that:
“We have to restore advice and representation, otherwise we are undermining the rule of law. Without legal aid, people are being deprived of access to Justice. I don’t believe there are any judges these days who are not worried as to what has happened as a result of LASPO.”
Furthermore, Steve Hynes, director of the Legal Action Group which promotes equal access to justice claimed that “LASPO is a big part of the reason why equality before the law is rapidly becoming a privilege for the few, rather than a right all of us should enjoy. Cuts have reduced access to civil legal aid services to a postcode lottery in which many lose out”.
Overall, despite the UK’s commitment to protect Human Rights as mandated by the European Convention of 1949, the current justice system in 2019 does not provide every citizen with adequate access to justice. Their ultimate reluctance to be governed by the European Convention, as indicated by several Supreme Court cases and the public’s decision to leave the European Union, is threatening both access the justice system and the rule of law.
Join Justice Week and help educate young people using the #TheBigLegalLesson
In 2020, it is up to educators to inform young people of this threat in order to make any tangible changes in the future. The Big Legal Lesson will assist teachers in educating their students on the current justice system and how it directly affects them as individuals. Despite unending political mayhem and uncertainty, this public legal education campaign will help young people become more aware of the justice system and how the rule of law is maintained, sometimes unsuccessfully.
Tilly Finn is a Communications Intern from Melbourne, Australia. She is a third-year student, studying a Bachelor of Law and Global Studies, at the Australian Catholic University. She joined the communications team at Young Citizens during a 3-month placement because of her passion to seek truth and represent a clear version of reality. Tilly believes that by communicating authentically, progress can be made in humanity.