Justice at the polls

The airtime granted to the treatment of access to justice in the coverage of the main parties’ published manifestos has so far been limited. From criminal justice to immigration; from social care to personal injury; from legal aid to the Human Rights Act, each of the manifestos makes commitments that might inform legal practice for the next five years. More importantly, they may shape the ability of clients to secure redress, vindicate their rights, and have their voices heard in the UK’s courts and tribunals.

Access to justice and the legal system

A comprehensive review is impossible over just two pages, but here we outline some of the headlines – on access to justice, human rights, and immigration – to whet your appetite.‘Forward Together’ – the Conservative party’s manifesto – cites our legal system as our ‘greatest national inheritance’ and commits to continue the planned programme of court modernisation. It promises to ‘strengthen legal services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces’. Who will decide whether a firm is unscrupulous or a claim vexatious is unexplained. No other commitment is made on legal aid, fees, or funding.

Other justice commitments include a new victims’ law including provision for pre-trial cross-examination for children and vulnerable witnesses; satellite monitoring for foreign national offenders subject to deportation orders; the extension of the unduly lenient sentences scheme; and the introduction of new legislation to tackle hate crime, including against transgender people.

An ‘independent public advocate’ is promised following Hillsborough, to ‘act for bereaved families after a public disaster and support them at public inquests’. Those who represent bereaved families might ask whether this ‘public advocate’ will be sufficiently independent to protect families’ right to participate, as guaranteed by the Human Rights Act.

In ‘For the Many’, the Labour party commits to reviewing the means tests for legal aid and says it will ‘consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach’.

Early advice entitlements in family cases would be immediately reinstated and funding for preparation of judicial review cases restored. Investment is committed for digitisation of the courts where it ‘enhances access to justice, timely dispute resolution, and efficient administration’.A review of judicial appointments is proposed to ‘ensure a judiciary that is more representative of our society’. It commits to ‘reverse unfair employment tribunal fees’. Other promises include no-fault divorce, inquiries into Orgreave and blacklisting, extension of the time limit for pregnancy discrimination claims, and a consultation on a new environmental tribunal.

The Liberal Democrat party – in ‘Change Britain’s Future’ – also commit to a review of the impact of LASPO on legal aid and to the reversal of employment tribunal fees. It also commits to a separate legal jurisdiction for Wales. Other promises include exploration of further funding for criminal legal aid ‘from sources other than the taxpayer’, including insurance for company directors, and a ‘digital bill of rights’.Manifesto commitments are rarely fully formed. However, they do create promises to which a future government might be held by Westminster. The vision each party and any politician – no matter their political stripe – has for access to justice should matter to anyone who holds the rule of law dear.

Human Rights

Perhaps the most surprising aspect of this Brexit general election is the consensus it has created among the major political parties on the Human Rights Act and the European Convention on Human Rights.

In contrast with previous elections, the parties agree that the present arrangements should remain in place, at least during the Brexit process: that is, the HRA should be retained and we should remain signatories to the ECHR.

For instance, the Labour and Lib Dems’ manifestos, perhaps because they were published before the Conservatives’ manifesto and anticipated a Tory plan to repeal the HRA, pledge to oppose any such plan. The Lib Dems also promise to oppose any attempt to withdraw from the ECHR. (It must be assumed that a similar promise to remain in the ECHR is implicit in Labour’s promise to retain the HRA.) These policies are themselves not surprising: support for both the HRA and the ECHR is the long-standing position of both Labour and the Lib Dems.

What is surprising, given the prime minister’s well-publicised personal opposition to the ECHR, is the Conservatives’ promise not to repeal or replace the HRA while the process of Brexit is underway. This promise is qualified in that the Tories’ manifesto immediately goes on to state that they will consider ‘our human rights legal framework when the process of leaving the EU concludes’. However, no such qualification applies in respect of the Conservatives’ policy on the ECHR. The manifesto simply states: ‘We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.’

No public explanation has been given for this commitment. During her campaign for the leadership of her party, Theresa May recognised that, in the 2015-17 parliament, there was no parliamentary majority for leaving the ECHR, though one would have thought that would not be a similar constraining factor in a general-election manifesto.

It may simply be that the Conservatives now consider that, because of Brexit, and the time and resources that must be spent unravelling European Union law from British law, the HRA and ECHR are not priorities. It may also be that the issue does not have quite the resonance it once did: high-profile UK cases that reach the European Court of Human Rights have vanished virtually to nothing, as have the number of violations found against the UK government. The Conservatives may, therefore, have concluded that either the political and diplomatic capital that would need to be spent to repeal the HRA and withdraw from the ECHR are better spent elsewhere, or the issue is not currently important enough for that capital to be spent at all.

Whatever the immediate explanation, it may be yet another of the unforeseen consequences of Brexit that it has created a consensus on what used to be one of the most divisive issues in British politics.

Immigration

The question of immigration controls dominated the Brexit referendum and now dominate the current general election debates. Of course, immigration control is strongly dependent upon the eventual exit agreement with the EU, and European law not only affects the rights of EU nationals within the UK, but also many of the rights of non-EU nationals residing or seeking to come to the UK.

The European Charter, regulations, and judgments of the European Court of Justice all affect these rights and it is wholly unclear if, and in what way, they will be incorporated into domestic law. However, notwithstanding this significant uncertainty, the Conservative manifesto boldly seeks to reduce annual net immigration still further to tens of thousands, rather than the 273,000 it currently stands at.

At the sharp edge of the proposals is a pledge to reduce the number of asylum claims made in the UK, in favour of a system of offering asylum to people in parts of the world affected by conflict and oppression. The rationale behind this is that the present asylum system favours those who are young, healthy, and wealthy enough to come to the UK. It should be stated that these are exactly the type of people who will make the greatest economic contribution to the UK through long-term working and payment of taxes.

Further, how a future Conservative government is going to further deter asylum seekers from coming here is unclear, given that the majority of asylum seekers’ experience of seeking refuge is uncertain, dangerous, and exploitative, and already provides a significant deterrent. The government should be careful that any future proposals would not put it in breach of the 1951 Refugee Convention or the ECHR, which will remain UK law even after the UK leaves the EU.

Labour’s manifesto, by contrast, recognises the UK’s international obligations in taking its fair share of refugees and that they are making a valuable economic contribution to the UK. It would also be a positive move to recognise that refugees who are not able to come to the UK should also be allowed to relocate through a UNHCR-mandated process. It recognises that migrants should not become second-class citizens through being forced into exploitative and dangerous employment. It also recognises the need to have a flexible immigration system to meet the needs of all sectors on the British economy.

In relation to other migration, the government wants to focus on the needs of the British economy through a visa system geared towards the needs of industry, requiring students to leave after their course and increasing the income threshold for family visas, which already stands at £18,600 for a spousal visa. The present proposals, in conjunction with the loss of EU rights, may breach the rights to family life, especially with regards to children whose interests should always be paramount.

A post-Brexit UK, where EU nationals will not be able to work here as of right, will still require large numbers of migrants in all sectors of employment. A more inclusive and responsive immigration system is required, rather than one which sets high thresholds and quotas for entry. Rights of families should be maintained and enhanced and international humanitarian obligations should not be sacrificed for short-term political gain.

Angela Patrick, Paul Harvey, and Tublu Mukherjee are barristers at Doughty Street Chambers

www.doughtystreet.co.uk