JusticeWatch: And so the ‘headlong rush into impetuous reform’ begins

Headlong rush
It was only the day before yesterday when the then attorney general Geoffrey Cox QC suggested that while he had concerns about the ‘judicialisation’ of politics, there was no need for a ‘headlong rush into impetuous reform’. 

As Nicholas Reed-Langen wrote for the Justice Gap today: ‘Clearly Boris Johnson and Dominic Cummings take a different view, with Cox defenestrated yesterday afternoon in favour of Suella Braverman, the former chair of the European Research Group and an MP with deeply questionable views on the judiciary and human rights.’

Before her election to Parliament in 2015, Braverman practised as a barrister in areas that included judicial review and immigration law. ‘Despite this, she is deeply suspicious of the role of the judiciary,  arguing in a recent comment piece for Conservative Home that “Parliament must retrieve power ceded to another place – the courts”, with “prorogation and… Article 50… examples of a chronic and steady encroachment by the judges”.’ 

In a recent parliamentary debate on the Streatham terror attack, Braverman said that the ‘strained’ interpretation of human rights threatened national security, while in 2015 she argued, in a similar vein, that Article 8, which protects the right to privacy and a family life, had been interpreted in a way which was ‘laughable, pitiful… and unjust’. Alongside this she has called for a ‘Universal Declaration of Responsibilities and Duties’ to be ‘read in tandem’ with the UN’s declaration on human rights.  

‘This focus on responsibility is redolent of individuals who take a transactional view of rights, viewing them, wrongly, as mere privileges that can be won and lost.  This philosophy, which degrades the inherence and universality of human rights, is pervasive in Johnson’s government. So far, it has successfully rendered Shamima Begum stateless, while it is currently being used to deport ex-offenders – many brought here as children- without giving them the opportunity receive legal advice. It considers the fact that they have committed crimes to be sufficient to deprive them of their rights. That some of these offenders have been found guilty of offences that aren’t all that different to acts done by our prime minister, as Jeremy Corbyn has pointed out, makes the iniquity all the more glaring.’
Nicholas Reed-Langen

Braverman’s appointment ‘signalled a willingness by Boris Johnson to tread on judicial toes as he forces through potentially fundamental changes with the Constitution, Democracy and Rights Commission which he plans to establish’, wrote Andrew Woodcock, the Independent’s political editor. ‘The prime minister is thought still to be smarting from his humiliation at the hands of the Supreme Court when it ruled his suspension of parliament unlawful last September.’

Traditionally, parliament made the law and judges applied it. But today, our courts exercise a form of political power. Questions that fell hitherto exclusively within the prerogative of elected ministers have yielded to judicial activism: foreign policy, conduct of our armed forces abroad, application of international treaties and, of course, the decision to prorogue Parliament.’
Suella Braverman

Also on the Justice Gap, barrister Miranda Grell wrote about the #Jamica50 deportation flight and the ‘incredible last ditch efforts by ‘heroic immigration lawyers who battled in the Court of Appeal until 1am’ to stop the charter flight carrying British or long-term UK residents from leaving the UK.

Grell wrote: ’We are angry because this devastating situation has only served to reinforce the disgraceful ill-treatment of the Windrush generation that is still taking place; with the majority of Windrush victims still destitute, uncompensated and suffering mentally and physically because of what their own government has put them through.’

‘We are not seeing white young men whose families originate from Australia or New Zealand having their homes raided in the middle of the night by eight to 10 immigration officers, thrown into detention and deported in chains and shackles on a group flight with other Australians or New Zealanders.’
Miranda Grell, barrister and campaigner with BAME Lawyers for Justice

Clogging up the system
The country’s most senior family judge has urged private law firms to make ‘regular donations to keep the crisis-hit court system functioning’, reported The Times. Sir Andrew McFarlane, president of the Family Division for England and Wales, wanted law firms to fund a charity to provide support for about 160,000 people ‘clogging up the system by appearing in court without a lawyer. The charity needs extra donations of at least £1.5m a year’.

‘In the most extreme cases, couples are being granted divorces unexpectedly early because of staff errors, putting settlements at risk, and fathers are becoming estranged from children because contact arrangements take so long to negotiate,’ the paper reported

McFarlane said: ‘The family courts are currently experiencing the highest recorded volume of private law cases and … many of these now involve litigants in person.’

Resolution had presented him with ‘a dossier warning of a system in apparent freefall’ setting out the courts’ failings in ‘hair-raising detail’. The ‘terse catalogue of errors’ only hinted at ‘the misery created by the incompetence of the courts’. 

‘It seems reasonable to me to invite each of the main private client family law firms and barristers’ chambers to consider making modest annual contributions to enable Support Through Court [a charity that helps those appearing without a lawyer] to provide their extremely valuable facilities throughout England and Wales.’
Sir Andrew McFarlane

Tweet of the week

Lawyer-free zone
Meanwhile the Guardian reported that restrictions on reporting cases in the family courts were  ‘hopelessly obsolescent’ and should be repealed. ‘Sir James Munby, who retired as president of the family division in 2018, said that since the coalition government’s withdrawal of legal aid for private family cases in 2012, there has been little effective scrutiny of such cases,’ wrote Owen Bowcott.

‘The effect of Laspo [the 2012 Legal Aid, Sentencing and Punishment of Offenders Act], with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever increasing numbers of litigants having to appear unrepresented and without legal advice,’ Munby said. ‘… There is a vast and ever increasing mountain of anecdotal material suggesting beyond all serious argument that there are very serious problems which cannot sensibly be ignored by any reasonable person.’


LAA culture of refusal event
On 9 October 2019 over 200 legal aid lawyers met to discuss the #cultureofrefusal at the Legal Aid Agency (LAA). A second meeting will take place on February 27, 630 PM at the Lecture Theatre of BPP University, Holborn Campus, 68-70 Red Lion St, Holborn, London WC1R 4NY.

The event is organised by Tim Baldwin, Garden Court Chambers, Sue James, Hammersmith & Fulham Law Centre and Simon Mullings, Edwards Duthie Shamash SolicitorsJoin them to find out the results of the LAPG survey on the culture of refusal at the LAA and to plan a strategy for going forward.


About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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