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Paving the way to totalitarianism

When will the state stop interfering and restricting lawyers' power to help the everyday man, asks Kerry Underwood

8 April 2014

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As lawyers we see the current onslaught from the government, the Jackson courts and the regulators as an attack on us.

It is also an attack on the rule of law and the concept that disputes should be determined by independent judges according to the law, not by regulators
and administrators.

Throughout history there has been a tension between access to justice and legal costs, epitomised by the comment that the courts like the Ritz, are open to everyone. The current official mood is very different. It is that courts and access to justice are in themselves undesirable and to be restricted. Reacting to the 79 per cent reduction in employment tribunal claims since fees were introduced in July 2013 a minister said: “The only work being hit by our tribunal reform is the workload of employment lawyers”.

Leaving aside the issue of how this remark fits in with the government’s submissions in the judicial review proceedings, how can a 79 per cent reduction in cases be judged a success other than from a ‘courts are bad’ perspective?

As a former Court of Appeal judge, Henry Brooke tweeted “What about justice being hit?” Lawyers appear in tribunals and courts to represent real people with real disputes that need resolving. They are the ones being hit.

The proposed £250 fee for a benefits appeal will have the same effect, as will the huge increase in court fees.

The Ministry of Truth clearly wishes those charged with criminal offences to be unrepresented or poorly represented. Criminal lawyers are taking industrial action and the system is in crisis. The willingness of the state to properly fund the defence of those it prosecutes is the core of a tolerant and civilised society.

It is no coincidence that judicial review, criminal defence and benefits appeals are being picked on. Commercial law, no challenge to the power of the state, is left almost untouched with its special courts, special facilities and special exemptions from the Civil Procedure Rules.

The Legal Services Ombudsman, a senior civil servant, sounds like a spokesman for the insurance industry and Grayling, stating, almost unbelievably, of the Jackson Report that the “aim of these changes is to make legal services more accessible while managing costs.”

He also refers to “ambulance chasing”, fraudulent claims, insurance premiums being driven up, the “increasingly aggressive” no win no fee market and the need to “rein in the burgeoning personal injury market”. All of this is from his report on use of the term “no win, no fee”. I have read Daily Mail editorials more balanced than this.

For some reason the word efficiency always brings to mind the Third Reich. This government is not totalitarian. Neither is Jackson or the Jackson courts or the Ombudsman or the SRA, but their constant and irrational attacks on lawyers and use of the courts risk removing one of the major checks, along with a free press, on the power of the state. That in turn risks paving the way to totalitarianism.

You can have lawyers or jackboots; there is nothing
in between. 

Kerry Underwood is senior partner at Underwoods Solicitors