Lawyers defy ConDems assault on justice system

Lawyers are normally known for their measured language. But their anger over the government’s pseudo-consultation over cuts to legal aid which will undermine defendants’ rights, knows no bounds.

This morning, former appeals court judge Sir Anthony Hooper described the proposed “robust quality assurances process” as “gobbledegook”. The Bar Council said the plans would wreck a “world-renowned” justice system.  

Lawyers’ organisations calculate that the cuts mean that some 75% of people will lose the right to legal aid, meaning around 200,000 fewer cases. They are the most severe cuts since the system was introduced in 1949.

The legal profession was given a derisory two-months to consider proposals outlined in “Transforming Legal Aid”, published by justice secretary Chris Grayling on April 9. His wants to cut £220 million from the criminal case legal aid budget. The consultation closes tonight.

Grayling’s proposal to introduce Price Competitive Tendering (PCT) removes the right of those seeking legal aid to chose their own lawyer. It allows bidding from corporations such as delivery and transport Stobart Group and security firm G4S. The criterion is price, not quality or personal trust.

The Bar Council, which represents lawyers in England and Wales has shredded the claim that PCT can provide a just provision of legal aid. In its response to the consultation, the Bar Council says PCT is “deeply flawed [and] ignores fundamental human rights”.

In a 150-page response, the Bar Council warned that outsourcing legal work would destroy many smaller solicitors’ firms and “rapidly destroy” the criminal defence system. There were, it added, “serious implications for public confidence in the justice system”. Maura McGowan QC, chairwoman of the Bar Council, said: 

PCT may look as though it achieves short-term savings, but it is a blunt instrument that will leave deep scars on our justice system for far longer. Further cuts to the scope of civil legal aid will limit access to justice for some of the most vulnerable. That is a legacy of which no government should be proud. 

One of the main aim of the proposals is the reduction of applications for judicial review – in other words people’s ability to challenge the decisions of the executive, particularly those refusing the right to asylum.

A group of 90 QCs last week signed a letter arguing against the cuts in legal aid, saying that the Legal Aid, Sentencing and Punishing of Offenders Act 2012 had already limited legal aid for judicial review.

It is already extremely difficult to be granted permission by the courts for a judicial review. Of the 7,200 applications for permission considered by the courts in 2011, only 1,200 succeeded.

The Bar Council’s denunciation follows a huge protest last month when some 1,000 lawyers met to oppose the MoJ’s consultation paper. A wide range of professional legal bodies, lawyers, solicitors and QCs resolved overwhelmingly not to non-cooperate with the marketisation of legal aid.

The Bar Standards Board, which regulates admission to the profession, says the changes "may endanger the ability of our legal system to guarantee everyone a fair trial". It said plans to pay legal aid lawyers the same amount for a "guilty" or "not guilty" plea could lead to defendants being pressurised into pleading guilty.

The Haldane Society of Socialist Lawyers is calling for “increasingly intense strike action” and collaboration between those working in the justice system. Significantly it calls for a campaign that is “not simply defensive” and that it depends on the support of the wider public.

The short time given for this consultation is evidence of the state’s continuing attack on the rule of law, whereby the judicial system has a form of independence from the executive.

Going beyond defensive action to assert, not only the rule of law but the need for a new democratic constitution, or a modern Agreement of the People, as the Haldane Society has done, is the best way to defend legal aid and other rights.

Corinna Lotz

A World to Win secretary

A final protest takes place outside the Ministry of Justice from 4.30pm today.

Tories have Human Rights Act in their sights

The imminent appearance of the parliamentary commission’s report into a new Bill of Rights is giving the Tory right an opportunity to bray against what they call “a court sitting overseas” – the European Court of Human Rights.

For the Bill of Rights as is proposed is not about holding parliamentary lawmakers and the executive to account or guaranteeing basic democratic rights. No, quite the opposite. Behind the nationalist demagogy about “diktats from Brussels” and a purely “British” form of justice, is something quite different.

This is prime minister Cameron’s effort to appease the right wing in his Conservative party.  Their nationalism provides a cover for a visceral hatred for the idea of human rights in general and the European Court of Human Rights in particular.

Strangely enough, for the Union Jack-waving backwoods people who argue that the ECHR is a dictatorial “imposition” from Europe, it was the Tory Winston Churchill who helped establish the European Convention of Human Rights. The same Convention then led to the establishment of the European Court of Human Rights in 1959, as human rights lawyer Bill Bowring notes.

Despite this, it took four decades for the convention to be – and then only partially – incorporated into British law. This took place in 1998 under New Labour. But, to the anger of human rights lawyers, home secretary David Blunkett immediately “derogated” – i.e. opted out – of Article 5 of the Convention, which enshrines “the right to liberty and security of person”.

He did this as on the grounds that there was a terrorist threat and a public emergency in the UK following the 9/11 attacks on New York, which overrode any such individual rights.  New Labour’s derogation dovetailed neatly with the needs of the secret state – namely the heads of the military, the police and secret services – and last but certainly not least – the US Central Intelligence Agency’s own “war on terror”.

Two recent cases show why human rights legislation is hated by the right.  Asperger’s Syndrome sufferer Gary McKinnon avoided extradition to the United States on computer hacking charges under the Human Rights Act.  It took huge determination by McKinnon himself, his mother and lawyers to conduct  a ten-year legal campaign after initially losing appeals in the High Court and the House of Lords against his extradition. Last week, it was decided he would face no charges in Britain.

The case of German citizen Khaled el-Masri has taken almost as long.  El-Masri was seized by security officers in Macedonia on 31 December 2003 while crossing into Serbia. He held incommunicado for 23 days, turned over to the CIA and tortured.  It was only on December 13 last week that 17 European court judges provided him with any kind of redress.

The ECHR has held that his forcible disappearance, kidnapping and “rendition” in Skopje to the United States violated the most basic guarantees of human decency. He had never been charged with any crime. It was a case of mistaken identity but neither the CIA nor the US government admitted what happened.

The Commission for the Bill of Rights has already cited the “exponential increase” in the ECHR’s caseload as a threat to its viability. At that time the court had a backlog of 150,000 cases. The commission’s first proposal is that new screening mechanisms should be introduced to “reduce very significantly the number of cases that reach the Court”.

So the ECHR is facing a twin attack – from the Tories in Britain and from the backlog of cases as a result of the mounting attacks on human rights. The Bill of Rights under consideration is a Trojan horse which we should not make the mistake of accepting as a gift. Instead, we should fight for an Agreement of the People, a democratic constitution for the 21^st century.

Corinna Lotz

A World to Win secretary

Secret courts one step closer

“The Ministry of Justice is transforming the justice system”, says its website. But behind the jargon of transformation, transparency and modernisation, there is an actual demolition of justice taking place in Parliament.

This ministry was set up under Blair back in May 2007 as part of New Labour’s “modernisation” of Britain’s legal system. This project of undermining long-cherished rights is enthusiastically being continued by the present government

The Justice and Security Bill 2012-13, sponsored by Lord Wallace of Tankerness, has now lumbered through three readings in the House of Lords and is now due for its second reading in the House of Commons. You can even follow its progress towards royal assent on this website. Its stated aim is to:

“Provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for

connected purposes.”

All openness and light, surely?

While the Bill’s progress is “open”, what is actually proposed is highly secretive and sinister. Its provisions give the secret intelligence services huge powers vis-a vis those they seek to try and punish. Ministers will have the power to obtain a “Closed Material Procedure” or CMP.

These procedures have previously only been used in relation to terrorism cases. They mean that, under the catch-all umbrella  of “national security” only the judge, the government’s lawyers and a “special advocate” appointed by the government will be allowed to know what is going on.

As the Guardian’s Nick Thornsby has pointed out, the CMP procedure is even more disturbing than a secret court. Its Kafkaesque provisions mean that “not only will the public not be able to hear the evidence before the court but the claimant – and his or her legal representatives – will also know nothing of what is presented.”

Even those of us not versed in the language of the legal profession can see that this spells serious dangers.  

The outcry from a raft of organisations and legal experts as the bill proceeded through parliament gives serious pause for thought. The BBC’s Dominic Casciani asks: “Are secret courts one step closer?”

Human Rights organisation Justice says the Bill’s provisions “could undermine public confidence in the administration of civil justice and damage the credibility of our judiciary”.

Liberty’s Isabella Sankey says: “The Government has not made the case for these illiberal proposals, which would change our justice system forever. These amendments may mean fewer miscarriages of justice but they do not undo the danger this Bill presents - minor nips and tucks won't make this chilling policy palatable.”

Kate Allen, director of Amnesty International UK has said: Even with the changes made by the Lords, the Justice and Security Bill would allow the government to rely on secret evidence across the court system in an unprecedented way that is incompatible with full respect for the right to a fair trial.

Human Rights lawyer and Haldane Society of Socialist Lawyers international secretary Bill Bowring, notes that the Bill “threatens to take Britain back to the 17th century, through the use of secret evidence”.

Earlier this year, former The former Director of Public Prosecutions Lord Macdonald’s warned that “secret trials [are] an attack on the rule of law”.

Will the Bill get through? Although the LibDems voted down the Bill at their autumn conference, most experts now believe it will be enacted in 2013. So, along with other serious inroads, such as the criminalisation of squatting, it’s clear that our legal rights are being whittled down.

Welcome to authoritarian Britain, home to more CCTV cameras per head of population than anywhere else, where the draft Communications Data Bill instructs internet service providers to collect and store your emails (the state can already intercept them) and where the police regularly invoke anti-terror laws against peaceful protests.

Corinna Lotz

A World to Win secretary