The KSLR Forum

The King’s Student Law Review also manages a series of academic blogs that provide an in-depth exploration of various areas of the law. All blogs are edited by law postgraduate students at King’s, and publish works of a high standard of legal scholarship.

This blog, the KSLR Forum, focuses on analysing timely legal issues.  To read our first article, scroll down.

 

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

by T. Ghazi 

In literature and popular culture alike, the portrayal of lawyers as deceivers and master manipulators is hardly uncommon. The 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 inextricably linked to the public’s apprehension towards the law and legal system, particularly in England and Wales. Whilst in theory, the law ought to uphold justice and ensure the protection of all citizens, in practice, many would claim that this is no more than a myth. A survey from 2015  indicates only a quarter of Britons believe that the English Legal System is ‘fair and transparent’,  meanwhile more than half Britons consider this system to be inaccessible. 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. Public distrust in the English legal system can be said to arise 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.

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’.[2] Recently, the Windrush scandal confirms this image of the UK’s legal system as morally skewed. The 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’. Before these measures were adopted by the Home Office in 2010, the documents corroborating the legal status (‘right to remain’) of the children of the Windrush immigrant generation were conveniently not preserved. Windrush children thus became ‘easy targets’ for the application of this policy, and were consequently deprived of ‘leave to remain’. Yet, when these findings emerged with the scandal, many claimed that the hostile environment policy embodied yet another example of exploitative legislative measures.

Likewise, some suggest that ‘exploitative’ legislation is rife throughout centuries of Common Law. Another example pertinent to the present 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 clause in an Act of Parliament grants the ‘Crown’ (today taken to be the government) 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. Here, the pretext for the excessive use of such powers was said to be Brexit and the need to repeal swathes of legislation formerly adopted upon Britain’s entry into the European Union (at the time, the European Economic Community).

The common exercise of such powers would surely be exploitative and undemocratic as the Executive would be granted the ability to ‘chop and change’ the law upon their own, unilateral discretion. Highlighting this in his Mansion House speech, Lord Chief Justice Lord Judge remarked that such powers, originally a result of Henry VIII’s tyrannical whims, must be ‘confined to the dustbins of history’.

 A Closer Look at The UK’s Legal System 

Yet there is an important distinction to 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 permitted due to the convenient loss of the documents proving the Windrush childrens’ ‘right to remain’ (in line with the 1971 Immigration Act). Furthermore, the Henry VIII powers are only conferred upon the Executive by virtue of an Act of Parliament in the first place. And, in accordance with the doctrine of Implied Repeal, a necessary extension of ‘parliamentary sovereignty’, Parliament retains the power to revoke these extensive ‘Henry VIII powers’ at any point in time.

Therefore, the blame long-directed exclusively at the UK’s legal framework is misplaced. For whilst loopholes in legislation and inconsistent case law exist, the UK’s uncodified and multi-layered constitutional framework allows these to be remedied in a fairly easy, particularly in comparison to other countries. The existence of a Common Law system in the UK denotes that the Judiciary limits the scope of and sets the standards for the interpretation of primary sources of legislation, in light of their original context and meaning. In short, not only does the Common Law system ensure that the law can be changed, but that all existing legislation must be applied in a manner set and regulated by the courts.

Furthermore, the UK’s constitutional framework ensures a sturdy process of Judicial Review, carried out by an independent Supreme Court that is, in theory, uninfluenced by political agenda. This process of judicial review is a good example of ‘checks and balances’ within the UK’s constitutional framework,  for it ensures that the legality of government decisions are examined with great precision. The recent case of R (Miller v Secretary of State for Exiting the European Union) [2017] on the legality of a government order executing the results of the Brexit referendum, prior to Parliamentary approval, is one amongst many notable cases.

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

In short, the UK’s complex constitutional framework ensures that Henry VIII powers, along with ‘similar tools of exploitation’, may be abolished by Parliament at any given time.  As for the Windrush scandal and the subsequent suffering  caused, this resulted from both the ‘hostile environment policy’ and the UK Border Control’s decision not  to preserve the documents confirming the Windrush children’s ‘right to remain’. 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. Here, not satisfying legal standards enabled setting  ‘targets’: those who could later be legally threatened with deportation. If anything the Windrush scandal confirms the politically-motivated use of the law, as opposed to flaws in Britain’s legal system per se.

The Role of Political Expediency

However, this expedient attitude towards the law is hardly new. For centuries, politicians around the world have conveniently disregarded legislation and legal principles to meet their aims.[1] Examples are rife in times of conflict. When justifying Britain’s blockade of Germany in 1915, Mr Asquith claimed that, when dealing with this diplomatic crisis, Britain would not be ‘strangled in a network of juridical niceties’.[3] 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.[4]

Recently, the findings of the Chilcot Inquiry[2] 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. The inquiry revealed that the legal basis for UK military action was ‘far from satisfactory’, and that this conflicted with Britain’s other legally binding international obligations. Thus, it would be remiss to claim that the UK’s legal framework is intrinsically exploitative. Rather, ‘exploitation’ occurs because of a common, politically-motivated, and expedient attitude towards the law. A closer look into such cases and how the legal system operates reveals these nuances.

The Importance of Trust 

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

Indeed, the violent polarisation of politics that has recently resurfaced in the UK (as well as Western Europe) is worth taking into account, for this has fueled the fire of public distrust. Both ends of the political spectrum have swung to extremes:  the Left has become increasingly socialist (exemplified by the radically left nature of Corbynism), whilst the Right has become increasingly conservative (exemplified by UKIP’s initial rise and Brexit). These extreme political views have galvanized mass distrust in traditional institutions, particularly the legal system.

 

Yet another question remains untouched: If the English Legal system is not quite as flawed as perceived and entails progressive principles, why is ‘distrust’ still so important? After all, how the public feel about a particular issue should not always be followed. A classic example is the Death Penalty. A study conducted in 2015 estimated that 48% of the United Kingdom’s population feel that it should be reinstated. However, this would be an unsurmountable and unhelpful task. Not only would reinstating the Death Penalty entail repealing the Human Right Acts of 1998 (after the approval parliamentary majority), this task would violate Britain’s international legal obligations.

To emphasise the value of ‘public trust’, constuitional theorists such as Lord Bingham argue that the need for public confidence in the legal system is established on the basis of necessity.[5] As Bingham emphasises, if the law is neither understood nor respected, it cannot and will not be followed. In short, not only does good law stagnate if it is not upheld and trusted by citizens, but the support a legal framework commands is integral to its efficiency.[6] Today, as malady of distrust increases, the threat of citizens’ blatant disregard for the law is no longer improbable.[7] And in practice, a world without a trusted and fair legal system would allow the State to establish and justify its power through coercion. This would be no different to the dystopian nightmare illustrated by George Orwell in 1984. The words of the celebrated philosopher John Locke come to mind: ‘Wherever the law ends, Tyranny begins’.[8]

Examining ‘Inaccessibility’, and Prescribing a Remedy

Nevertheless, some say that an obvious obstacle prevents the law from becoming more publicly accessible: the inevitable and necessarily precise nature of legislation. More specifically, it would be naive to assume that highly technical, specialised legislation can be readily understood by those who are not experts. But this view is a simplification of the concept of accessibility; for making the law ‘more accessible’ does not just mean simplifying legislation and legal procedures.

Instead, accessibility could entail encouraging legislators to make the law more accessible where this can be achieved. As for where this is not possible, facilitating ‘accessibility’ would entail ensuring that the less fortunate, and the less educated, may access affordable, or free, legal counsel.

Thus, a viable solution would be two-fold: constitutional; and practical or institutional. The first step would entail constitutionally enshrining the importance of accessibility within the UK’s legal framework. This could be achieved indirectly through legislating a clause on the ‘need for accessibility’, within an existing important legal instrument of constitutional significance. By enshrining accessibility as a desirable, if not necessary pre-requisite to all future pieces of legislation, judges and legislators would thus become wary of informing the public of changes within the law. And in fact, this proposal is hardly novel, for it has been suggested by Lord Bingham in his proposed ‘thick’, substantive definition of indispensable constitutional principle of the ‘rule of law’.[9]

Indeed, Bingham argues that for the ‘rule of law’ to exist, legislation must be ‘accessible, and so far, as possible intelligible, clear and predictable’.[10] Whilst Bingham proposed the inclusion of accessibility as one principle amongst nine other conditions to the rule of law,[11] this proposal is lies a step behind. In line with the existing acknowledgment that the rule of law is necessary, a sole non-exhaustive clause on interpreting ‘accessibility’ as being part and parcel of the rule of law could be inserted. As for a specific legal instrument, perhaps the most effective would be the Constitutional Reform Act of 2005. Whilst the Act mentioned the necessity of the ‘rule of law’ within the UK’s constuitional framework [12], this legal principle remains undefined, even though being mentioned in countless legal instruments.  If ‘accessibility’ were to be a necessary part of upholding the rule of law, judges and legislators would be incentivised to make the law sufficiently intelligible to the public, as and when it can be.

‘Legal Deserts’ – Exploring an Institutional Solution

However, this is hardly sufficient as the only prescription to re-engender public confidence in the UK’s legal system. Today the less fortunate are increasingly unable 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. Today, the UK’s Legal Aid Agency’s ‘exceptional case funding scheme’, supports a mere few hundred – instead of the target, 7,000.  A solution is thus needed to ensure support the less fortunate and exceedingly vulnerable, for they are unable to access the law, let alone understand it.  Ensuring ‘accessibility’ would then appear to be linked to protecting the status of legal aid. And In this field, the UK stands to learn a lesson from other Commonwealth jurisdictions who place considerable effort into making the law more accessible.[13]  For  one, the UK’s Law Society– if given sufficient government funding – could emulate aspects of the Australian framework of ‘Access to Justice’.

The new ‘Justice Project’ run and by the Australian Law Council is a case worth noting. This comprehensive, national review into the state of ‘Access to Justice’ in Australia seeks to pinpoint obstacles to access to justice for all and  construct an articulate ‘whole-of-government justice strategy’. The tabled recommendations are consequently executed and lobbied for by an expert Steering Committee is composed of eminent lawyers, jurists and academics ,and chaired by a former Chief Justice of the High Court. Hence, 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. Whilst the Australian model is a new undertaking, the attention devoted to making the law accessible in Australia is not novel. ‘Accessibility’ is afforded weight as a necessary constitutional principle; emphasising this, Lord Chief Justice Gleeson declared: ‘the content of the law should be accessible to the public’.[14]

Moreover, while the UK does have its own model of ‘Access to Justice’, 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 a lack of access to justice. This has 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 if any have the resources to receive legal counsel.

In sum, whilst public distrust of the legal framework in the United Kingdom has become a dire issue, the existing system is equipped with the necessary tools to remedy this. Re-instilling public confidence in our legal system could be achieved through a two-fold, constitutional and institutional approach. Enshrining the importance of accessibility within an instrument of UK constitution would give the  principle of accessibility the theoretical weight it needs to be applied wherever possible. The next step would be for the UK to adopt a similar ‘Justice Project’ to that of the Australian Legal Council’. For one, the Law Society and Bar Society could jointly spearhead a comprehensive review of the dire state of legal aid and the inability to access Justice in the UK. The publication of a detailed, final report with a cohesive ‘whole-of-government’ strategy could then be lobbied and legislated for in Parliament. Through such a proposal, the law would become truly accessible. Perhaps then, a para-phrase of the Shakespearean quote would be merited: The first thing we should do is kill this stereotype of the law and lawyers.

 

 

[1] See also initial hyperlink, journal article on political expediency and the Roman orator Marcus Tullus Cicero, 106-43 B.C.

[2] Commonly known as the ‘Iraq War Inquiry’.

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

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

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

[4] 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.

[5] Tom Bingham, ‘The Rule of Law’ in Cambridge Law Journal (2007) 6.

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

[7] ibid, 36.

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

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

[10] ibid., 37.

[11] ibid.

[12] ibid., 5, 9.

[13] ibid., 39.

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