David Cameron is seeking the opportunity to remove the obligation to publish equality impact assessments on new legislation. No wonder. The legal aid cuts were largely directed specifically against women in terms of removing assistance on matters relating to the breakdown of relationships. As the equality impact statement that the government was required to publish on the Legal Aid, Sentencing and Punishment of Offenders Act indicated, the disabled and those from black and other minority ethnic groups will suffer disproportionately – if only because of their disproportionate representation among the poor.
However, it is not all gloom. We should acknowledge the advances that we have made since I was admitted as a solicitor in 1973 and began work in Camden Law Centre. At that time, poverty lawyers were moving forward into new areas of legal protection and regulation very much like the early pioneers across the American west. Housing, immigration, asylum, community care, discrimination. These were all areas where lawyers in law centres and others in private practice funded by legal aid opened up new ways of rendering the powerful accountable both in private and public law. In their wake came government intervention and greater statutory control. We now face a rolling back of the protection of access to legal aid but let us not be too pessimistic. There remains a legacy in terms of legislation, experience, appeal rights and other ways of challenge. The Human Rights Act and the European Convention have blunted the attack on legal aid and the government’s proposals were specifically designed to avoid challenge and preserve Convention rights.Thus, we may lose legal aid for housing disrepair but not for possession. If you compare with the 1970s that is somewhat of an advance. At that time, we were making up the way that you might apply for an interim injunction or defend a possession action on the hoof. Now, these things are routine.
My theme is public interest litigation and I want to focus on two related mechanisms which have greatly advanced the accountability and transparency of power: judicial review and third party interventions. The combination of these have operated to expand judicial control over areas of state power that were hitherto secret: for example, decisions on the expulsion of non-citizens, the operation of the secret services and some of the activities of the armed forces even when they are abroad. You can see their effect just by tracing one case as an example: Baha Mousa. It took litigation to go as far as the European Court of Human Rights; an extremely brave and conscientious senior legal adviser to the Army, Lieut Colonel Nicholas Mercer; a judicial enquiry under Lord Justice Gibson; and very dedicated work by a team of lawyers led by Public Interest Lawyers in Birmingham. But they did it. The brutality of elements within the British army; the deployment of five interrogation techniques banned by Edward Heath in 1972 after embarrassing exposure of their use in Northern Ireland; the hypocrisy of a policy which was promoted as protecting people in Southern Iraq were all exposed.
An indicator of how effective judicial review has become as a remedy is the continued attempts to limit its operation. First, in 2004, we had David Blunkett trying to remove judicial review from asylum cases. His personal attacks on judicial figures as he struggled to remove judiicial scrutiny of executive action were crude, ill advised and, in the end, ineffective. Now, we have David Cameron telling the CBI that ‘we need to forget about crossing every t and dotting every i’; saying that ‘we need to throw everything at winning’ the global race of capitalism. What actually he wants to do turns out to be less of a major threat to the future of judicial review and more of a publicity-oriented stunt: a cut to time limits, a rise in court fees and removal of some appeal rights. The future of any attempt to set court fees at deterrent levels rather than ones which can be justified by actual costs incurred would seem, at best, uncertain. In any event, court fees are not a restriction to most applicants either publicly or privately funded. Restricted time limits will just be a nuisance. Nevertheless, his proposals are clearly a straw in the wind and I will return to them.
Consideration of the actual statistics of judicial review is interesting. If we compare figures between 2011 and 2004 there has been a doubling of the number of applications for permission in asylum cases – from 4207 to 8649. There is a much smaller rise in other applications. As to actual substantive decisions, the number in civil cases has remained exactly the same (87), those relating to criminal matters have reduced (33 as against 43) and the number of successful asylum cases has remained small though it has risen (from 26 to 54). So, judicial review might annoy ministers but they lost only 174 cases last year. There has been recent judicial suggestion that, particularly in asylum cases, lawyers are abusing the system by waiting until the last minute to apply and neglecting to disclose the full circumstances of the case. So, it may well be that there is some argument to be made for tightening up but little evidence to talk of allowing government to be sloppier in its decision-making process. In the end, ministers who over-hype their initiatives will get found out. Even Tony Blair got rumbled in the end.
The importance of legal aid in judicial review cases is often as much its protection against awards of costs than its provision of funds in any event. The Scottish Legal Aid Board has understood this in a way that has eluded the English authorities. It has been able to raise civil financial eligibility limits on the basis that, in a successful case, legal aid operates only as a guarantee and not a grant. Thus, for little or no expenditure, it has been able to encourage appropriate litigation in civil cases: the desirable win-win.
The successful establishment of judicial review has encouraged various interest groups, statutory and non-government, to join reviews as third party intervenors and, thus, added a further dimension to the accountability of power. The procedure is actually of some antiquity. It was used by the Anti-Slavery Society in the 18th century to join actions by masters seeking to regain ownership of absconding slaves. The judge in Sheddon v Knowles, a key Scottish case that preceded the more famous English ones, allowed evidence in the form of ‘Memorials’ from various interested gentlemen attached to the society which showed a ‘copiousness and variety of curious learning, ingenious reasoning and acute argumentation’. The procedure seems to have been established in the Ecclesiastical Courts by the early 19th century. In recent times, bodies like the Equal Opportunities Commission, the Commission for Racial Equality and UNHCR made the first successful third party interventions in the late 1970s. By the late 1990s, NGOs like Liberty, JUSTICE and Amnesty International had followed. Lord Irvine positively encouraged intervention as an alternative to broadening the rules on standing when the HRA was introduced in Parliament. Interventions are no fairly routine in the Supreme Court. For example, in 2009, a total of 137 organisations made 89 interventions in 68 cases out of the 310 decided. The majority of intervenors remained public bodies like the EHRC rather than NGOs or private bodies.
The consequence for the development of public jurisprudence has been enormous. The Bingham-led Supreme Court played a blinder in binding the HRA and the ECHR into domestic law – to the extent that the effect of repeal of the HRA is unclear. It may well be that, lo and behold, the magic of the common law has allowed the concepts of human rights to have been indissolubly absorbed within its basic tenets so that key concepts such as proportionality, such an advance on pre-existing rationality and legality, would withstand all but the most determined legislative assault.
The interesting thing is where we go from here. David Cameron’s announcement this week is in the tradition of David Blunkett and shows the hostility of democratically elected Parliamentarians at the accretion of constitutional power by the judiciary. Both major political parties have sought to direct politically embarassing cases into private forms of adjudication and away from the public scrutiny in the open court room. The Coalition Government was comprehensively defeated on key elements of its Justice and Security Bill earlier this week. However, there are dangers abroad, The speeches of Lord Sumption, in particular in his F A Mann lecture last year, indicate that, within the tent of the judiciary, there are substantial figures siding with government critics. No doubt, the expression of such views will do his career within the Supreme Court no harm.
And there is a major constitutional issue here. The combination of sophisticated public interest litigation, a bolder judiciary, the chances provided by the Human Rights Act and the development of judicial review are changing the distinctive balance of the British constitution. Parliament remains supreme in the sense that it can, ultimately, decide to do anything – pull out of the World Trade Organisation, the United Nations, NATO, the European Convention on Human Rights, the European Union. However, the notion that any government operates without de facto or legal constraints in illusory – certainly for a country whose economy and political weight is as much in decline as ours – attractive though it may be to the US. If we decide that it is in our interest to be part of these organisations – and that would seem entirely rational – then we have to accept the limitations that come with them. Even if these include giving some prisoners the vote, an issue of such crushing immateriality that the very fact that politicians can advance it as a major point of principle somewhat underlines the shallowness of much current political debate.
So, there is a line from legal aid through judicial review and third party interventions – the core procedural underpinning of public interest litigation – to the fundamentals of our constitution. Public interest litigation is forcing us towards a more sophisticated approach to power than simply delegating it to those who win elections. Of course, there are dangers of hubris here. Judges and litigators need to exercise some measure of self-restraint. Just to take a example, I have not supported the attempts to get the courts to decriminalise the assistance of suicide. I don’t think it should be criminal but I do think that this is something which should be decided by Parliament and, indeed, that debating it would be a good deal better use of its time than parading on prisoners votes. Of all the subjects of public interest litigation that make David Cameron sick, his choice of prisoners’ votes seems bizarre. How does he respond to such issues as the collusion of MI6 in torture around the globe? He must be positively retching.
The big constitutional issue for the future – to be explored both in courts and Parliament – is the appropriate balance between different checks and balances in the constitution. The danger of taking an easy view of legality, of dotting ‘i’s and crossing ‘t’s, has been all too well revealed in the cases like that of Binyam Mohammed that have exposed the collusion of the UK in torture and abuse. Those have been exposed by public interest litigation. Long may it continue. Long may lawyers challenge power and judges uphold their arguments. Long may we be able to protect legal aid for such challenges. And long may we also celebrate how far we have travelled towards a more civilised and accountable society.
