Lawyers, justice and legal funding

Why litigants need lawyers

I didn't write this but I thought it was well put, explaining the impact of populist anti-lawyer attacks, the effect of cutting public funding for the public and why the courts are jammed up: 

"Back in the day, he'd have got free legal advice and that legal advice would have been by respected professionals able to explain to him that his case was not going to win. Now, litigants are told all lawyers are lying scheming toads, and that you don't need them and you can win your case just by virtue of being "right". Of course show me a litigant who doesn't think they're in the right and should win, and I'll show you a flying pig! So people with hopeless cases pursue them and then (unsurprisingly) lose. But what's the reason for losing? It can't be that they didn't have a case. It must be that the judge is corrupt." (Dominic Cooper, comment on Law Society Gazette website)

I would add that the unrepresented and unadvised litigants often don't understand finality in the courts. If they lose a case, perhaps because of procedural mistakes (such as not providing their evidence) they feel that "justice" requires that they should be allowed another go. Resulting in further anger and frustration, like the chap who called the police from the courtroom and asked them to arrest the High Court judge for treason!

Lawyers have an important role in the justice system. They know what courts are likely to decide, so their advice stops bad cases coming to trial - the vast majority of civil claims are settled. Lawyers understand procedure, so they can gather the necessary evidence and present the client's best case on the day. In criminal cases, they ensure that defendants make informed choices (such as guilty pleas) and are given a fair trial with proper testing of the evidence. Without lawyers, the courts are landed with the impossible task of dealing with chaotic cases, raw unreviewed evidence and bewildered parties. Judges are not investigators. They can only deal with the evidence presented to them.

Practising law is about predicting what courts will decide. A party with no case and no evidence - perhaps a defeated US president - cannot stave off the inevitable by insisting on his day in court, as if the outcome is some random event. Equally, the rights and wrongs of a genuine dispute cannot be decided by one party (often the government) denying the other the right to have the facts established on the evidence.

Legal assistance has to be paid for. Public funding for legal advice is not, as Daily Mail headlines constantly scream, to provide a benefit to criminals or illegal immigrants - it doesn't go to them. It is to make the justice system work, to find out whether there is a genuine dispute, to keep bad cases and bad arguments for overwhelming the courts, and prevent mistakes by the State destroying lives unchallenged.

Populist attacks on lawyers for doing their jobs - allowing people to assert the rights given them by Parliament and keeping the justice system running - are iniquitous attacks on the rule of law.

Brexit: judicial independence and the Bill of Rights

Attacks on our guarantees of freedom from tyranny

The vicious attacks on the judges in the papers over the Brexit judgment are disgraceful. We have an independent judiciary and the rule of law for good reasons, and we forget them at our peril. But what did the court actually decide? Contrary to what the tabloids say, it has nothing to do with the referendum and whether it is binding - the Government did not even attempt to argue that the referendum provided legal authority for giving the Article 50 notice. The case turns on whether giving the Article 50 notice effectively changes the law enacted by Parliament. The Government accepted that the notice automatically brings about the end of UK membership and cannot be withdrawn. The court found that this changes the legal rights of UK citizens, and any Brexit agreement with the EU would also have legal effects inside the UK. The power of Government to make (and unmake) treaties is under the Royal Prerogative. It is clear - and very important - that ministers do not have power to change or override the law as enacted by Parliament. A commentator criticised the judges' reliance on "a 17th century statute" - but that is the Bill of Rights, as close as we get to a written protection of freedoms in English law! It says, "the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall ... the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie ... is illegall." Everyone knows that untangling UK laws from the EU will need an act of Parliament. What the judges have decided - and the point on which an appeal to the Supreme Court could succeed - is that the mere giving of the Article 50 notice has a legal effect that amounts to repealing or suspending the European Communities Act 1972, wholly or partially. That needs an act of Parliament. The central point is whether the Article 50 notice has that effect. Does it, of itself, change domestic laws; or does it, like many treaties, change international obligations in ways that need UK legislation to implement them, which comes later? Can ministers create a legal mess at international level, which then has to be sorted out later by Parliament? Wait for the next thrilling instalment of R (Miller) -v- S of S for Exiting the European Union.