Inaugural article – Tasneem Ghazi

 

 ‘Kill All the Lawyers’ – Examining Public Distrust of the English Legal System

By Tasneem Ghazi

   In literature and popular culture alike, one is sometimes exposed to the portrayal of lawyers as deceivers and master manipulators. This cliché is notoriously embodied by the Shakespearean quote: ‘The first thing we do, let’s kill all the lawyers’.[1]Today, this sentiment extends beyond a stereotype of lawyers – it is also inextricably linked to the public’s apprehension towards the law and legal system, particularly in England and Wales. In theory, the law ought to uphold justice and ensure the protection of all citizens, but in practice, many would claim that this is no more than a myth. A survey from 2015  demonstrates that only a quarter of Britons believe that the English Legal System is ‘fair and transparent’, while more than half Britons consider this system to be inaccessible.[2]More recently, a parliamentary report in July outlined that ‘legal deserts’have emerged since the enforcement of additional legal aid cuts – rendering the law more inaccessible than ever before.[3]Thus, public distrust in the English legal system stems from two issues: a common belief that the UK’s legal system is inherently exploitative, and a common inability to access justice and understand the law.

 

  1. An Exploitative Legal System?

The notion that a traditional legal system is inherently exploitative is certainly not novel. Bertold Brecht’s bitter words come to mind: ‘The law is made for the exploitation of those who do not understand it’.[4]The recent Windrush scandal confirms the image of the UK’s legal system as morally skewed. This scandal was allegedly the direct result of the enforcement of the UK Home Office’s ‘hostile environment policies’: a set of legislative measures necessitating the deportation of  ‘targets’ : immigrants who lacked official documents with ‘leave to remain’.[5]Before these measures were adopted by the Home Office in 2010, the documents corroborating the legal status (‘right to remain’) of the children of those who immigrated during Windrush were convenientlynot preserved. And as a result, Windrush children became ‘easy targets’ for the application of the policy – and were thereafter deprived of ‘leave to remain’. When these findings re-emerged with the scandal, many claimed that the hostile environment policy embodied yet another example of exploitative legislative measures.[6]

Likewise, some suggest that ‘exploitative’ legislation is rife throughout centuries of Common Law. Another example pertinent to the present political situation is the exercise of ‘Henry VIII powers’. By virtue of the Statue of Proclamations issued in 1539, the ‘Crown’ assumed the power to legislate by proclamation. The inclusion of a Henry VIII clausein an Act of Parliament would grants the ‘Crown’ (now cabinet) the unqualified power to amend or repeal legislation without referring back to Parliament for scrutiny. Recently, these powers were invoked by Theresa May’s cabinet in the formulation of the EU Withdrawal Bill.[7]Here, the pretext for the excessive use of such powers was said to be Brexit and the need to repealswathes of legislation formerly adopted upon Britain’s entry into the European Union (at the time, the European Economic Community)[8].

Nevertheless, the common exercise of these powers is exploitativeand undemocratic as the Executive are granted the ability to ‘chop and change’ the law at their own, unilateral discretion. Highlighting this in his Mansion House speech, Lord Judge remarked that such powers, which were originally a Henry VIII’s tyrannical whims, must be ‘confined to the dustbins of history’.[9]

 

  1. In Defence of the UK’s Legal System

Yet there is an important distinction that must be made – for conveniently employing the law as a political tool is hardly the same as an exploitative legal system. Looking back at Windrush, the stringent application of the ‘hostile environment policy’ was only permitted due to the convenient loss of the documents proving the Windrush childrens’ ‘right to remain’[10](in line with the 1971 Immigration Act)[11]. Furthermore, the ‘Henry VIII’ powers are only conferred upon the Executive by virtue of an Actof Parliament in the first place. Hence, in accordance with the doctrine of Implied Repeal(a necessary extension of the principle of ‘parliamentary sovereignty’), legally speaking, Parliament retains the power to revoke these extensive ‘Henry VIII’ powers.[12]

Therefore, the blame long-directed exclusively at the UK’s legal framework is misplaced. While loopholes in legislation and inconsistent case law do exist, the UK’s uncodified and multi-layered constitutionalframework[13]allows these to be remedied in a far easier manner than in other countries. The existence of a Common Law systemin the UK denotes that theJudiciarylimits the scope of and sets the standards for the interpretation of primary sources of legislation, in light of their original context and meaning[14]. Furthermore, the UK’s constitutional framework ensures a strong process of Judicial Review carried out by an independent Supreme Court that is (in theory) uninfluencedby political agendas. This process ofjudicial reviewis a good example of ‘checks and balances’ in the UK’s constitution, as it ensures that the legality of government decisions are examined with great precision. The recent case of (Millerv Secretary of State for Exiting the European Union) [2017][15]on the legality of a government order executing the results of the Brexit referendum, prior to Parliamentary approval, is one amongst many notable examples.

Exploring the origins of Henry VIII powers also demonstrates the strength of the UK’s constitution. The inclusion of a Henry VIII clause in an Act of Parliament – and by extension the ability to invoke these powers- can only occur through the approval of a Parliamentary Majority. In addition, the doctrine of Implied Repealensures that Parliament retains the right to revoke any outdated or undemocratic powers.

In short then, it is because of UK’s complex constitutional framework that Henry VIII powers, along with ‘similar tools of exploitation’, may be abolished by Parliamentat any given time.  As for the Windrush scandal and the subsequentsufferingthat occurred; this was a direct result of both the ‘hostile environment policy’ and the UK Border Control’s decision not to preserve the documentsconfirming the Windrush children’s ‘right to remain’.[16]If the necessary legal procedures had been followed, the requirements of the 1971 Act would have been met, and the Windrush children’s ‘right to remain’ would have been protected.[17]Here, not satisfying these legal standards enabled setting ‘targets’ of those who could later be legally threatenedwith deportation.[18]If anything then, the Windrush scandal confirms the politically-motivated use of the lawand as opposed to flaws in the law per se.

 

  1. The Role of Political Expediency

 

However, this expedient attitude towards the law is hardly new. For decades, centuries even, politicians around the world have conveniently disregarded legislation and legal principles to satisfy their wider agendas.[19]Examples are rife in times of conflict. When justifying Britain’s legally dubious blockade of Germany in 1915, Prime Minister Asquith claimed that, when dealing with this diplomatic crisis, Britain would not be ‘strangled in a network of juridical niceties’.[20]Likewise, in the Suez Crisis of 1956, Sir Anthony Eden paid no more than lip service to legal considerations:

 We should not allow ourselves to become involved in legal quibbles about the rights of the Egyptian Government to nationalise what is technically an Egyptian company.[21]

More recently, the findings Chilcot Inquiry confirm this. It was held that when the decision to deploy military personnel into Iraq was made in 2003), Tony Blair did not take into account all the necessary legal procedures.[22] The inquiry reveals that the legal basis for UK military action was ‘far from satisfactory’ and that these conflictedwith Britain’s other legally binding international obligations.[23] It would be remiss then, to claim that the UK’s legal framework is intrinsically exploitative. Rather, ‘exploitation’ occurs because of a common, politically-motivated, expedient attitude towards the law. A closer look into such cases and how the legal system operates reveals these nuances.

 

  1. The Importance of Trust

These nuances would not be apparent to those who are unfamiliar with the legal framework of the UK, and even more so to those who find it ‘inaccessible’. Matters have been exacerbated by the current political climate, whereby distrust in traditional political institutions is commonplace.[24]

The violent polarisation of politics that has recently resurfaced in the is worth considering, for it fuels the fire of public distrust.[25]Both ends of the political spectrum have swung to extremes- the Left has become increasingly socialist, whilst the Right has become increasingly conservative (exemplified by UKIP’s initial rise and the radically left natureof Corbynism). Extreme political viewshave thus played a significant part in galvanising mass distrustin traditional institutions – in this case, the legal system.[26]

Another question remains untouched: If the English Legal system is not quite as flawed as perceived and entails progressive principles, why is ‘distrust’ so important? After all, how the public feel about a particular issue should not always be followed. A classic example of this is the Death Penalty. A study conducted in 2015 estimated that 48% of the United Kingdom’s population feel that it should be re-instated.[27]Yet, this would violate Britain’s international legal obligations, and more importantly, necessitate the repeal of the Human Right Act 1998 and its approval by a parliamentary majority.[28]

Outlining the importance of ‘trust’, constitutional theorists such as Bingham and Bogdanor argue that the need for public confidence in the legal system is established on the basis of necessity.[1]If the law is neither understood nor respected, it simply cannot and will not be followed. The canon of good law stagnates if it is not upheld and trusted by citizens.[29]Hence, the support a legal framework commands is integral to its efficiency. As the malady of distrust is surmounting, the threat of a blatant disregard for the law is not the realm of fantasy.[30]And in practice, a world without a trusted and fair legal system allows the State to establish and justify its power through coercion. This is no different to the dystopian nightmare illustrated by George Orwell in 1984.Here, the words of the celebrated English philosopher John Locke come to mind: ‘Wherever the law ends, Tyranny begins’.[31]

 

  1. Examining ‘Inaccessibility’- and Prescribing a Legal Remedy

When considering a solution, the first and most obvious obstacle that emerges to making the law more accessible is unravelled: the inevitable and necessarily precise nature of legislation. It would be naive to assume that highly technical, specialised legislation can be readily understood by those who are not experts. However, making the law ‘more accessible’ does not necessarily mean legislation must be simplified. Instead, accessibility would mean encouraging legislators to make the law more accessible where this can be achieved. As for where this is less achievable, increasing ‘accessibility’ would entail ensuring that the less fortunate as well as the less educated may access affordable – or even free – legal counsel.

A proposed solution then would be two-fold; constitutional, and practical or institutional. As to the first part of the solution, this would entail constitutionally enshrining the importance of accessibility within the legal framework of the UK. This could be achieved indirectly through legislating a clause on inclusion of the ‘need for accessibility’ within an existing legal instrument. Accessibility would thus be a necessary pre-requisite that judges and legislators must consider when forming instrument of law. This has in fact been suggested by Lord Bingham in his proposed ‘thick’ and substantive application of the principle of rule of law. Here, ‘accessibility of the law’ is proposed as a necessary pre-requisite to the integral principle of the ‘rule of law’.[32]

Indeed, Lord Bingham stipulates that the law must be ‘accessible, and so far, as possible, intelligible, clear and predictable’.[33]While he proposed the inclusion of accessibility as one principle amongst nine other integral principles, the prescription I propose takes a similar mould but lies a step behind. Along with the existing acknowledgment that the rule of law is necessary, a sole non-exhaustive clause on interpreting the ‘rule of law’ as to mean ‘accessibility’ could be inserted. As for a specific legal instrument, this would be included as part of the Constitutional Reform Act of 2005. While the Act enshrined the necessity of a strong application of the ‘rule of law’[34], this legal principle is mentioned in countless legal instruments, and remains undefined in its scope. If ‘accessibility’were to be included as part of how constitutional principle should be interpreted, this would incentivise judges and members of parliament to make the law sufficiently intelligible to the public, as and when it can be.

 

  1. ‘Legal Deserts’ – Exploring an Institutional Solution

Nevertheless, this is hardly sufficient as the only prescription to re-engender confidence in the UK’s legal system. Another matter is associated with the legal system: the increasing inability of the less fortunate to access affordable legal counsel. A parliamentary report in July highlighted the emergence of ‘legal aid deserts’ as lawyers began to withdraw their services further due to stringent government-placed financial constraints.[35]Today, the UK’s Legal Aid Agency’s ‘exceptional case funding scheme’, supports a mere few hundred – instead of the target, 7,000. Thus,a solution is needed to ensure support for the less fortunate who are exceedingly vulnerable and unable to access the law, let alone understand it.  So, ensuring accessibility would be linked to protecting the status of legal aid for the less fortunate. In this field, the UK may learn from other Commonwealth jurisdictions who have placed considerable effort into making the law more accessible.[2]  Specifically, the Law Society in the UK – if and when given sufficient government funding – may emulate aspects of the Australian framework of ‘Access to Justice’ as a solution.

Part of this is a comprehensive, national review into the state of ‘Access to Justice’ in Australia, known as the new ‘Justice Project’.[36]Run and by the Australian Law Council, it is a model worth emulating. This project seeks to pinpoint obstacles to access to justice for all and  construct an articulate ‘whole-of-government justice strategy’.[37]The tabled recommendationsare consequently executed and lobbied for by an expert Steering Committeethat is composed of eminent lawyers, jurists and academics and chaired by a former Chief Justice of the High Court.[38]Thus, the project involves those who have actively engaged with judicial and legal challenges and are consequently well-versed in how the legally vulnerable could be best afforded access to justice. While the Australian model is a new undertaking, the attention devoted to making the law accessible in Australia is not novel. Accessibility is given added weight as a necessary constitutional principle – emphasising this, Lord Chief Justice Gleeson declared: ‘the content of the law should be accessible to the public’.[39]

In short, while the UK does have its own model of Access to Justice, but this is hardly afforded adequate funding or attention – as evidenced by the legal aid figures. It is little wonder then that the ailment of public distrust of the legal framework of the UK exists en masse.

Upon closer examination, the cause is not an inherently exploitative legal framework, it is, instead a dire inability access to justice. This has also been exacerbated by the current political climate: an age of uncertainty where distrust in traditional institutions is commonplace. And with the emergence of “legal deserts”, few have the resources to receive legal counsel. Thus, in the UK, public distrust may increase more than ever before. But all is not lost, for the legal framework of England and Wales is equipped with the necessary tools. As this article proposes re-instilling public confidence in our legal system through a two-fold constuitional and institutional approach. Enshrining the need for accessibility within an instrument of UK constitution would give the principle of accessibility the theoretical weight it needs to be applied (wherever possible) by cabinet and the Judiciary. This would be achieved by making ‘accessibility’ part and parcel of the central constitutional principle of the ‘rule of law’. As for legal aid, the UK could adopt a similar ‘Justice Project’ to that of the Australian Legal Council. Specifically, the Law Society and Bar Society could jointly spearhead a comprehensive review of the state of legal aid and the inability to access Justice. The publication of a detailed, final report with a cohesive ‘whole-of-government’ strategy could then be lobbied for by Parliament. Only then will we be able to make the law truly accessible, and consequently a para-phrase the Shakespearean quote will be merited: ‘The first thing we should do is kill this stereotype of the law and lawyers.

 

This article was published in January 2019.

 

 

[1]William Shakespeare, Henry VI, Act IV, Scene 2 (1591; Oxford University Press, 2008).

[2]Owen Bowcott ‘Only one-quarter of Britons believe legal system is fair’ (The Guardian2 Dec 2015) https://www.theguardian.com/law/2015/dec/02/only-one-quarter-of-britons-believe-legal-system-is-fair-survey-shows

[3]‘End legal aid ‘deserts’’ (The Law Society2019) https://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/end-legal-aid-deserts/

[4]Bertold Brecht, The Threepenny Opera, Act I, Scene (1928; Bloomsbury Publishing PLC, 2005).

[5]May Bulam‘The human impact of Theresa May’s hostile environment policies’ The Independent21 April 2018)  https://www.independent.co.uk/news/uk/home-news/hostile-environment-policy-theresa-may-migrants-windrush-a8315806.html

[6]ibid.

[7]Mark Elliott and Stephen Tierney‘House of Lords Constitution Committee Report on Delegated Powers’ (Public law for everyone19 November 2018)https://publiclawforeveryone.com/2018/11/19/house-of-lords-constitution-committee-reports-on-delegated-powers/

[8]ibid.

[9] Lord Chief Justice Igor Judge, Dinner for Her Majesty’s Judges 2018, Mansion House Speech4 July 2018

https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf

[10]‘Windrush Generation: Who are they and why are they facing problems?’(BBC news18 April 2018)

https://www.bbc.co.uk/news/uk-43782241

[11]Immigration Act 1971

[12] n (7) Public Law for Everyone 2018 

[13]‘The Judiciary, the government and the constitution’, Courts and Tribunals judiciary

accessed via https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/

[14]ibid.

[15]R (Miller v Secretary of State for Exiting the European Union[2017] UKSC 5

[16]Anne Perkins and Amelia Gentleman ‘Government knew for years that the Windrush generation hurt by hostile environment’ (The Guardian 23 April 2018)

https://www.theguardian.com/uk-news/2018/apr/22/government-aware-for-years-that-hostile-environment-hurt-windrush-generation

[17]ibid.

[18]Amelia Gentleman ‘Home Office Told of Windrush Errors Five Years ago, Experts Say’ (The Guardian8 May 2018)

https://www.theguardian.com/uk-news/2018/may/08/home-office-told-of-windrush-errors-five-years-ago-experts-say

[19]‘Cicero and Political Expediency’ Paul F Izzo, The Classical WeeklyVol. 42, No. 11 (Mar. 7, 1949), pp. 168-172 journal article on political expediency and the Roman orator Marcus Tullus Cicero, 106-43 B.C.

[20]HC Hansard, 1 March 1915, col. 600.

[21]Quoted in Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice tendered to the British Government’ (1988) 37 I.C.L.Q.773, 777.

[22]‘Chilcot Report: Findings at-a-glance’ (BBC News6 July 2016).

https://www.bbc.co.uk/news/uk-politics-36721645

[23]‘Report of the Iraq Inquiry: Executive Summary’ (Report of a Committee of Privy Counsellors 6 July 2016) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/535407/The_Report_of_the_Iraq_Inquiry_-_Executive_Summary.pdf

[24]Uri Freidman ‘Trust in Government is Collapsing around the World’ (The Atlantic 1July 2016)

https://www.theatlantic.com/international/archive/2016/07/trust-institutions-trump-brexit/489554/

[25]Michael Chessum ‘2016 must be the year of polarisation’  (The New Statesman 11 Jan 2016) https://www.newstatesman.com/politics/staggers/2016/01/2016-must-be-year-polarisation

[26]Speaker’s Corner: RJZ ‘The Biggest Political Divide in Britain is Age’( The Economist8 June 2017)

https://www.economist.com/speakers-corner/2017/06/08/the-biggest-political-divide-in-britain-is-age

[27]‘British Social Attitudes 35: Moral Issues, Death Penalty Annual Report’ NatCen British Social Attitudes2015 http://www.bsa.natcen.ac.uk/latest-report/british-social-attitudes-34/moral-issues.aspx

[28]Notwithstanding this, such an issue would also violate Britain’s international legal obligations.

[29]Tom Bingham, The Rule of Law, Ch.3 (2010; Penguin Books Ltd), 38.

[30]ibid36.

[31]John Locke, Second Treatise of Government,Ch. XVII, s.202 (1690; Cambridge University Press, 1988), 400.

[32]Tom Bingham, The Rule of Law, Ch.3 (2010; Penguin Books Ltd), 38.

[33]ibid 37.

[34]ibid 5, 9.

[35]‘Legal aid deserts complicating access to justice’  The Guardian 2018 n (2)

[36]‘The Justice Project’ Law Council of Australia 2018https://www.lawcouncil.asn.au/justice-project

[37]ibid.

[38]ibid.

[39]Murray Gleeson, Courts and the Rule of Law,Melbourne University, November 2001.