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Thursday, 19 April 2012

Access to Justice

The USA leads the world in the density of lawyers among the population, and the 'financial services' sector is virtually unable to take any action without engaging expensive lawyers. By contrast, the former communist countries have relatively underdeveloped legal professions; and in some cases - not least, Russia - the subordination of the courts to dominant political forces makes their independence non-credible. Because of its British imperial history, India has a massive legal 'profession' and the courts are slow-acting, arcane and little trusted because of the methodologies used by lawyers [including judges] to maximise their own earnings.

The former sovereign of both India and the USA is, unsurprisingly, deeply in thrall to its lawyers. British lawyers talk, often and cleverly, about the rule of Law and access to Justice, as if Law and Justice were absolutes of which they are devoted and humble servants. Laws are promulgated in the name of the Queen, and Justice is supposedly delivered by judges who are acting directly as representatives of the Queen under the unconditional authority of a medieval monarch. The second verse of the National Anthem summarises the formal situation:
            May she defend our laws
            And ever give is cause
            To sing with heart and voice  
             God save the Queen!
In those terms the last ten Prime Ministers - and especially the Conservatives Heath, Thatcher and Major - have led their governments and parliament in a series of effectively traitorous actions under which they have used the Queen's authority to accede to European Union treaties and laws, and to interpretations of the European Convention on Human Rights by the Court that was established under the Convention, that result in a situation where only a minority of British laws are made by the traditional constitutional process. In most cases laws and regulations established by the EU are adopted into British law without even a pretence of debate in parliament. As a more loyal follower of the Constitution than her ministers, Queen Elizabeth II, has acquiesced in the policies that her ministers assure her are approved by the nation through their elected representatives, even though this has vastly diminished her ability [through her government] to defend the laws that the nation supports. She has similarly acquiesced in the removal of her ability to defend the nation through the series of cuts in defence spending, and by permitting huge laxity in immigration law and in the administration of immigration processes.

While successive governments have effectively diminished the sovereignty of British laws and institutions vis-a-vis those of the EU, the numbers of people engaged in the 'legal professions' [Barristers, Solicitors and Legal Executives] have burgeoned both on the basis of indigenous law and EU law and as the central component of the massive 'human rights industry'. As part of their programme to reduce the rate of increase in state borrowing the current government has cut spending and services in the courts and has also reduced the budget for 'Legal Aid', the system by which the Exchequer pays fees to lawyers to act for defendants in criminal cases and for litigants in some classes of civil [social and contractual] cases. All public prosecutions are paid for by the taxpayer. There thus remains a massive force of courtroom lawyers, the majority of whom are at least partially funded by the state. The other lawyers who sell their services to the public, especially to firms, rely on the fact that their clients could be put to huge expense if they try to make deals without recourse to lawyers that could then open them up to prosecution by the state or to litigation by other firms and people; so people and businesses buy legal services to gain a measure of reassurance.

In earlier centuries people accused of petty offences, such as drunken assault or vandalism or motoring offences which cause no injury, were taken next day to a court of their 'peers' [ordinary folk like them] where lay magistrates would dispense 'summary jurisdiction'. The only lawyer involved was the Clerk to the Court; modest penalties would be imposed there and then, and that would be the end of it. Now, even for trivial offences, people are allowed access to a lawyer at the state's expense: such a person can try to maximise their earning from any case by getting hearings deferred, challenging even the most obvious evidence, impugning the competence and integrity of police officers [requiring them to spend a huge amount of their time on trivial record-keeping] and making appeals whenever possible. This causes huge delays in the dispensation of justice. Cases are often heard months after the event, when witnesses are not available and [when they are available] their memories are not fresh; and with a frequency that cannot be assessed witnesses - both attendees and absentees - have been intimidated into withdrawing or modifying witness statements or into absenting themselves from the court. There is a great deal of reason to believe that near-universal access to lawyers [at no cost to the criminal] works against the achievement of truth in the courts and thus the administration of justice.

Thousands of people have set up in business as human rights lawyers and hundreds of them specifically as immigration lawyers. They know that a huge proportion of their clients will become dependants of the state who will produce only progeny. They know that the national economy is failing: but they blithely take their fees from the state and push the cases for more people to be added to the millions who live on the state. The legal professions collectively have committed the huge injustice of reducing the average living standard of ordinary people.

Of course, the massively remunerated cohort of City lawyers are major contributors to the huge turnover of the precarious finance sector and of the always safe insurance industry: overall the so-called financial services have provided significant turnover for the economy and paid a lot of taxation and the law is an indispensable part of those businesses. At least, they all pay the lawyers' fees out of their earnings: and London attracts worldwide business as a centre for arbitration and litigation.

As with almost every other aspect of British society, the 'parasitic' band of lawyers who themselves earn near-average incomes impose a net cost on the mass of the population who have modest incomes and falling living standards: while the highly affluent minority of lawyers take their place among the rich and privileged minority whose incomes and living standards are continuing to rise. Right across the piece, however, the key fact is that  the Law has become ever more obviously the field in which lawyers make the best living that they can: public benefit and Justice are still quoted, but with diminished sincerity; and every increase in what lawyers extol as  access to justice can only realistically be estimated in cash. High-flown rhetoric on the subject is mere hot air.

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