The Government is in danger of destroying a 700-year-old right of access to fair and open justice to all, the most senior judge in the land has said.
Challenging plans to cut back dramatically on legal aid for hundreds of thousands of people from April, Lord Neuberger of Abbotsbury said: "As one of the three remaining articles of the Magna Carta (1297) says "to no man shall we deny justice", nowadays "to no man and no woman shall we deny justice", and we are at risk of going back on that."
In a week when both the Justice Secretary, Chris Grayling, and the Home Secretary, Theresa May, have attacked human rights legislation, proposing a distancing from the European Court of Human Rights (ECHR), Lord Neuberger added that he was uncomfortable with political attacks on the judiciary and the fact that human rights were gaining an unfair reputation.
The former Master of the Rolls, speaking out for the first time since his appointment as President of the Supreme Court, the highest court in the United Kingdom, said :"The two fundamental roles of Government are to defend the country from invasion and ensure the rule of law at home, and that includes access to justice."
He aired particular fears about the fact that from next month thousands of people will no longer have access to free legal advice for issues such as many family disputes, employment or immigration cases, and debt or housing problems. In an attempt to cut the legal-aid bill by £270m, the Government has withdrawn funding for numerous categories of civil and family law and, by its own estimates, as many as 585,000 people will be affected.
Lord Neuberger said his main worry was that those who could not afford to pay for a legal representative would have to rely on free advice being offered by the Government and charities, which was "second best". In the worst cases, he fears that those frustrated by an inability to seek justice would "take the law into their own hands".
While sympathising with the Government's need to cut costs, he questioned whether slashing legal-aid budgets would eventually prove to be a false saving. "Litigants representing themselves take much more time in court. The danger is that what you save on legal-aid budgets, you lose in terms of court efficiency. It will lead to longer delays in court hearings and spending more money on courts."
The Government has been at loggerheads with Strasbourg over a series of judgments, including blocking the deportation of the radical cleric Abu Qatada and ruling that some prisoners must be given the vote.
Lord Neuberger explained that while he understood some of the objections to ECHR rulings, a system as "broad and far-reaching as human rights" was bound to generate some controversy and some tough decisions.
"The problem is the devil is in the detail in hard cases where it is difficult to balance competing rights," he said. "I can see the argument of sending them [terrorist suspects] back if they are a threat to this country. But if you send somebody back knowing they are going to be tortured, it makes you responsible for torture."
He said it was hard to foresee whether such criticism of Europe would rebound on the UK judiciary: "It is difficult to predict whether, if they are busy attacking judges in Strasbourg, they will happily attack any judge or if they will focus their attacks on foreign judges."
Nevertheless, he added: "From time to time Home Secretaries have attacked individual judicial decisions. It is unfortunate and should not happen. It is not good for the system.
"If ministers don't like our decisions they have two options, one is to appeal; and if they don't like the result, they can change the law by statute.
"When ministers attack judges it risks bringing judges into disrepute – which does nobody any good – and it is unfair because judges cannot answer back. It is bad for the whole constitutional state when different arms start attacking each other."
A spokesman for the Ministry of Justice said: "At around £2bn a year, we have one of the most expensive legal-aid systems in the world. We firmly believe it is an essential part of the justice system, but can never lose sight of the fact it is paid for by taxpayers, and resources are not limitless. We recognise that the advice sector plays an important role in the legal system and we have recently made available £65m in funding for eligible organisations."
Speaking to the Independent about secret courts, Lord Neuberger insisted that open justice meant that as little as possible should be heard in secret.
He revealed that he was “uncomfortable” with aspects of the Government proposals for secret courts. The controversial plans for closed material procedures (CMPs), which ministers insist are necessary to fight cases of national security which would have to be otherwise abandoned for fear of revealing secret intelligence, have been repeatedly attacked by lawyers and human rights groups as a “radical departure from fundamental common law traditions”.
While he said he understood that there remained a limited need for secret hearings – such as the requirement to withhold evidence from the intelligence services relating to a potential terrorist – he said he found it particularly difficult to contemplate a scenario where the Government was allowed to withhold evidence from the opposition.
“It is completely contrary to fair justice,” he said. “Any person, judge, lawyer or non lawyer who really looked into the problem would be uncomfortable with it. Whatever answer you come up with, it is going to be difficult.”
“Most people accept it may be necessary in cases of national interest for some sort of secret procedure," he continued but added: "A judge should ultimately decide whether evidence is so sensitive. The government is going to want to keep things secret but judges are used to carrying out the balancing exercise."
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