ConDems attack rule of law with sledgehammer

The slide to outright authoritarian rule continues apace. Another assault on access to the courts system, this time through restrictions to the judicial reviews process, is a further nail in the coffin of the rule of law and thus to our democratic rights.

When access to the legal system comes to depend on wealth, as more and more it does, then the basis of justice is undermined. That’s the effect of ConDem policies to destroy legal rights carried out under the guise of “efficiency savings”.

Since April 1, legal aid has no longer been available for cases involving divorce, child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefit and education. A number of advice centres have closed as a result. An estimated 600,000 people will lose access to advice and legal representation.

Then there are the proposals to curb the rights of defendants to lawyers of their choice in criminal cases. These are so draconian that yesterday hundreds of lawyers based in the North of England effectively went on strike in protest. Instead of attending court, they held a day-long meeting in Manchester.

Leading trial prosecutor, Nicholas Clarke QC, says the proposals “will undermine the position of the independent bar, irretrievably and forever”. No defendant would be able to choose a firm on the basis of reputation or service.

Add in new laws providing for secret courts, you can see where this government is heading – at a rapid pace. Without pausing for breath, today the ConDems confirmed plans to curb the right to a judicial review. This the process by which people and campaigns can – at their own expense – challenge decisions of public bodies, including the government itself.

It’s a relatively unsuccessful route. Last year, there were over 11,200 applications to the High Court and only 174 were successful in that the courts made orders against the authorities concerned. More than 8,500 applications were immigration and asylum cases, reflecting the harsh way the state and its tribunals treat people in the initial stages. Only 54 were successful.

Now the justice (or should that be “justice”?) secretary Chris Grayling has quadrupled legal fees and imposed tight restrictions on time limits for lodging applications. The aim is to dispel what it calls the "culture of using meritless judicial review applications". What is really behind this measure, however, is the determination to steamroller through planning and development plans.

Claire Norman, from the Campaign to Protect Rural England, said: "The financial costs alone were already prohibitive for environmental groups to address environmental wrongs, halving the time limit in which they can be made sends the message that the government really wants this safeguard removed altogether.

"We need good quality development with public consent. This decision only works to undermine the credibility of the planning system, and removes one of the only means for community groups to challenge decisions.”

Judicial reviews are a cornerstone of the independence of the judiciary and the rule of law – as opposed to the unfettered rule of the executive - which was set out as a principle in the Bill of Rights of 1689. They have grown in numbers since the 1980s as more and more people have fought back against public authorities.

The attack on legal aid and other measures have prompted the UK’s most senior judge to speak out. Lord Neuberger, president of the supreme court, said last month that cutting legal aid would “start cutting people off from justice”, which would be “dangerous”. While he was not saying that “the rule of law is going to fall to pieces” he added: “But I do think we have to be careful.”

Clearly Neuberger is concerned about the threat to the rule of law posed by accumulated changes in favour of the executive and against the interests of those who seek redress or need to defend themselves. He is right to be. The market state is not interested in justice but in getting the best price at the lowest cost. It’s another good reason to support the campaign for a new democratic constitution sponsored by the Agreement of the People for the 21^st century.

Paul Feldman

Communications editor

The state tools up for confrontation

The summonsing of social networks Facebook, Twitter and the Blackberry messenger service to the Home Office in London today is part of a growing crackdown by the state in the wake of the riots in a number of English cities.

Prime minister Cameron suggested in a speech to Parliament that the government should be able to “disconnect” social networks and phone networks at times of civil disorder. Today’s meeting, hosted by home secretary Theresa May, is being held in response to his call.

There are already reports that the spy agencies MI5 and GCHQ are working to break Blackberry’s encryption technology that has made it a first choice for business users and state officials.

This is just one example of a co-ordinated campaign by the government and state institutions to set aside democratic niceties like the rule of law and human rights legislation in the wake of the riots.

Since the riots, the government has announced plans to weaken human rights legislation, allow police to use water cannons and rubber bullets and said that police will be given blanket curfew powers. This is the state tooling up for social confrontation on a serious scale.

As for the rule of law – whereby the courts are immune to political and police pressure and accused cannot be detained unreasonably or without charge – that is already being seriously undermined by the actions of the police and the government.

Cameron told MPs it was about time decisions were made in Parliament, not in courts. Attacking one recent decision, he said “how completely offensive it is to have once again a ruling by a court that seems to fly completely in the face of common sense". That is the language used by petty dictators everywhere.

He set the tone for the courts when he said that anyone convicted "should expect to go to jail". He threw his support behind the four years jail for Facebook comments, saying the court had decided "to send a tough message".

The voices in opposition have been few and far between. Labour has said nothing, while a few Liberal MPs have bleated their fears. Leading criminal barrister John Cooper QC warned that judges and magistrates had a duty "not to be influenced by angry Britain", describing some of the sentences handed down already as "disproportionate and somewhat hysterical".

Not long ago, magistrates courts were known as police courts, where the word of a police officer was never challenged. The name may have changed but they have reverted to type since the riots.

Over 62% of those arrested over the riots have been remanded in custody, compared to the average of 10% for those appearing before a magistrate. That’s because the police wanted it that way.

A document written by the Met suggested that no one arrested in or after the riots should be let off with a caution – regardless of the offence.

Everyone arrested should be held in custody, with a recommendation that bail should also be denied. The document says: "The volume of prisoners being processed makes it impractical to bail for the purpose of protracted investigation.”

Solicitor Edward Kirton-Darling, of Hodge, Jones & Allen, whose client was denied bail, said: "The right to bail is a long-standing and essential part of our criminal justice system. It should be carefully considered and each case should be looked at on its own merits.

"In relation to the riots, it seems that the Metropolitan police took a strategic decision to apply a blanket ban and deny everyone bail, no matter what their circumstances. I consider this policy is unlawful as a result."

Hodge, Jones & Allen are seeking a judicial review and their letter to the Met describes the policy as amounting to "unlawful arbitrary detention" of people.

Undoubtedly, the state is preparing for more than a repeat of the disorganised riots. A developing social crisis, prompted by a failing economy and spending cuts, is surely what the authorities have in mind this coming autumn and winter. The state is laying down the gauntlet and campaigns for democratic alternatives like people's assemblies are more vital than ever.

Paul Feldman

Communications editor