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Sunday, 29 December 2019

Clipping the wings of the Supreme Court and other Christmas tales

The Government has promised a review of the UK constitution in order to - "restore trust in our institutions and our democracy." According to the BBC this will include steps reduce the power of the Supreme Court. This would, if it wasn’t legal nonsense, be an act of revenge for the decision in September 2019 that Boris Johnson’s unlawful prorogation of Parliament was unlawful.

The BBC report quotes a Whitehall ‘source’ as saying that the plan is to ‘clip the wings’ of the Supreme Court by reinstating its – ‘more modest role - as the appellate committee of the House of Lords.’

I think another brief history lesson is called for.

The House of Lords has exercised a judicial role since, at least, 1399. This role was formalised in the Jurisdiction Act 1876 when it became the final Appellate Court and the highest court in the land. . All appeals ended there. The House had the final say. The judges were Lords of Appeal in Ordinary and were known as Law Lords, who also had the right to sit in the House itself

UK Courts follow a system of precedent. This means that courts must follow decisions of a higher court. So, the High Court is bound by the Court of Appeal. In most cases the Court of Appeal must follow its own previous decisions. The House of Lords was the only court that could overrule its own earlier decisions. 

In 2009 The Supreme Court was created by the Constitutional Reform Act 2005. The aim was to separate the judical functions from the legislative. The Law Lords became Supreme Court Judges. Their role was judicial only. They no longer sat in the House of Lords. But apart from that, there was no real change in the role of the court. It remained the final court of appeal. It was the highest court in the land, just like the House of Lords.

All of which begs the question. How does the government or anyone else propose to ‘clip its wings’? Its previous role was far from ‘modest’ as suggested by the BBC report. The judges would presumably become Law Lords again, rather than Supreme Court Judges. In all other respects it would revert to what it was for centuries. It would be supreme rather than Supreme!

It really is nonsense or something worse. 

What it really looks like is an attempt by politicians to exercise control over the judiciary, to eliminate judicial independence.

The report also mentions enhancing the role of the Lord Chancellor who has to swear –

“…that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

So will the ‘enhanced’ role involve the removal of that oath? That would surely diminish the role.

Judicial scrutiny of the executive remains a vital constitutional safeguard. It is a safeguard that must stand above political revenge.      

Monday, 16 December 2019

Legal Aid - the arguing is over. What now?

So, the General Election frenzy is over – probably for another 5 years.

There will be many questions asked about why those who opposed the government failed so miserably. No doubt we will see many changes over the next few months. But there is one thing we can be certain about; there is not going to be any miraculous return to the halcyon days of legal aid for all. I mentioned in my last blog that Labour’s manifesto gave positive signs. But as Jonathan Freedland wrote over the weekend –

“Labour’s “radical” manifesto of 2019 achieved precisely nothing. Not one proposal will be implemented, not one pound in it will be spent. It is worthless.” 

I mentioned in my last post, that the Conservative manifesto was silent on access to justice. When legal aid was mentioned in the campaign, the ‘party line’ was the familiar mantra that we had the most expensive legal aid system in Europe! The days of arguing are now gone. We can look forward to at least 5 years of ever reducing, publicly funded access to justice. We must accept that the argument is finished or at least ‘on hold’ for the foreseeable future.

But the problem isn’t going anywhere. People will still need advice on welfare benefits, housing, debt, family problems, immigration. They can no longer expect any significant help from the state. We all have to look at alternatives.

As recently as 2014 I wrote –

‘Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist?’

I can now tell you why. Because no one else will, and the need for help is going to grow beyond anything that we could have imagined. 

The legal profession and advice sector have no choice. We must work together to ensure that those in need are not abandoned. In fairness, Pro Bono work has been growing over the last 10 years. In 2014 it accounted for 3% of the turnover of all firms. This has enabled thousands to get legal help. But, earlier in 2019 the Master of the Rolls said that there was only so much that could be done and there was a risk that the sector would be overwhelmed –

But it has to be done.

Great work is being done by Universities and Colleges who run legal advice clinics. This is a great opportunity for students to experience the real world of legal advice. It has also become an important piece in the legal advice jig saw. I have long argued that this can never replace a properly funded legal aid system. But for the time being at least, we are not going to get one. You can read more about Pro Bono work at  -

In the meantime there will still be Law Centres and other agencies which provide free legal advice. Many centres are already struggling. In the absence of any public funding they are going to need help from us all. I am involved in the North West Legal Support Trust – which is part of the Access to Justice Foundation – . The trusts raise funds and provide grants. In 2020 there will be a series of Legal Walks across the UK. Imagine the difference it would make if lawyers and firms committed to walk or support an event.

Our resolution for 2020 must be – what can I or my firm do?