Saturday, 19 October 2013

A shocking proposal to deprive the poor of a basic democratic right, the ability to challenge unfair decisions by the State



Here is a shocking proposal. To save money, why not say all poor people should be deprived of the vote? After all, a high proportion of them do not actually use their votes and it would simply be a return to the situation pre-1918 and wasn’t the century before then the time when Britain was at its most glorious?

Of course, the shocking proposal above is not a real one. It would be quite obviously anti-democratic and obnoxious and would be met with a huge public outcry. However, the Coalition is doing something now which is no less anti-democratic and obnoxious and yet it is being met with only limited opposition. I refer to the proposed reforms to a little known part of the legal system called Judicial Review (JR).

JR is the process by which people can challenge decisions made by the State. This is not only Whitehall or local government but it is also any public body taking a decision. Every day public officials make countless decisions over a huge range of areas. A decision might, for example, be about whether and how to house someone or whether to let a child into a particular school or about awarding a rail franchise or over a planning application or on licensing or about entitlements to services or over benefits or about whether someone should get certain treatment provided by the NHS or whether someone should be sent back to a country where they claim they face persecution. 

JR is concerned with the way decisions are taken rather than the decisions themselves. It is the protection for the citizen against unfair and arbitrary decisions. It makes officials accountable to the people who will be affected by their decision and ensures that they consider all relevant factors and ignore all irrelevant ones when making their decision. They can’t, say, favour their own relative or decide on the basis of skin colour. Nor can they decide on a whim or by throwing a dice or a dart. They have to take the decision properly.

The ability of those with deep pockets to challenge unfair and arbitrary decisions will not be affected by the Coalition’s proposals. However, the proposals will affect the ability of the poor to bring cases as legal aid will be restricted. Without equal access to justice the UK can no longer be properly considered as operating under the rule of law. Effectively depriving poor citizens of the ability to challenge decisions of the State is as fundamental a stain on our democracy as depriving them of their right to vote would be.

Last week the most senior judge in the country, Lord Neuberger, the President of the Supreme Court took the unusual step of using a public lecture to express some highly trenchant views on the Coalition’s proposed reforms to JR.  

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government or other public bodies…I am not suggesting that we have a dysfunctional or ill-intentioned executive but the more power that a government has, the more likely it is that there will be abuses and excesses which result in injustice to citizens, and the more important it is for the rule of law
that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly.

…we must look at any proposed changes (to JR) with particular care, because of the importance of maintaining JR, and also bearing in mind the proposed changes come from the very body which is at the receiving end of JR.

…the cost-cutting proposals risk deterring a significant number of valid (JRs) and will save a pathetically small sum

…Cutting the cost of legal aid deprives the very people, who most need the protection of the courts,  of the ability to get legal advice and representation

…If a person with a potential (JR) cannot get Legal Aid, there are two possible consequences. The first is that the claim is dropped: that is a rank denial of justice and a blot on the rule of law. The second is that the claim is pursued (without a lawyer), in which case it will be pursued inefficiently (and cost the system more)”

In the introduction to his lecture, Neuberger said as follows.

“I am not being alarmist, but there is a deep truth in the adages that the price of liberty is eternal vigilance and that all it takes for wrong to triumph is for good people to do nothing.”

When as distinguished and eminent a man as the country’s top judge says such things the great British public ought to stir themselves just as they would if a government actually did try to stop all poor people voting.




1 comment:

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