THE RULE OF LAW AND ACCESS TO JUSTICE IN THE UK
Thank you very much for inviting me to meet with you. This is my second visit to Mozambique. I was made extremely welcome 12 months ago and have been looking forward to returning.
Firstly, to introduce myself. I am an English qualified lawyer. From 2014 until 2015, I was the President of the Law Society of England and Wales. The Law Society is the Bar Association for all Solicitors qualified within the English jurisdiction.
I have been asked to speak to you about the rule of law and access to justice in the UK. However, before I do so, it might be helpful to highlight some points about the English legal system:-
1. England has a Common Law system, not one based on Civil Law. Common Law systems are adversarial. They are lawyer led and not Judge led, and the Judge is more of an ‘umpire’ within the hearing itself. There is a big emphasis on oral advocacy and also upon the use of “precedents”.
2. You may have noticed that I said that I was the President of the Law Society of England and Wales. I did not mention Scotland. This is because Scotland has a system based on Civil Law. An accident of history!
3. The legal profession in England is split between Barristers and Solicitors. There are about 16,000 Barristers and 160,000 Solicitors. The difference between the two is essentially how they practise. Barristers are self-employed, whereas Solicitors work within firms and employ other lawyers and administrative staff. Both have the right to represent clients in Courts.
4. The appointment of judges is also very different in England. There is no judicial career path leading direct from university. Judges in England are always senior lawyers who have first had a number of years’ experience as advocates – often around 20/25 years. As you know, many of our judges wear wigs – there is a joke that judges need their wigs to cover their ‘grey hair’ or ‘no hair’!
So, the Rule of Law and Access to Justice…
It is particularly relevant that I am speaking to you about these two subjects. As President of the Law Society, I launched a national ‘Access to Justice’ campaign in England in 2014. Further, the following year we celebrated the 800th anniversary of the ‘Magna Carta’.
At that time that Magna Carta was sealed (in 1215) England had a bad king called King John. He used his position to enrich himself at the expense of just about everyone else. Justice was at his discretion and could often be purchased by the payment of large bribes.
England was on the brink of a civil war. Realising he had no choice, King John came to a compromise with the leading citizens and the result was the Magna Carta.
It is from this document that in England we trace the creation of our first Parliament, the idea of ‘trial by jury’ and, most importantly, the concept of ‘the rule of law’. The rule of law means, of course, that all are subject to the law, none are above it. Not the king, Parliament, rich or poor.
English history tells us that it took many centuries before ‘the rule of law’ became as integral as it is today. Successive kings of England revoked the Magna Carta. For example, in the 17th century, King Charles II of England began to act above the law and without the aid of Parliament. The result was a civil war. We even had a republic for 10 years – ie no king at all.
The common people did not really feel the benefit of the rule of law in the first centuries after Magna Carta as it primarily benefited the already wealthy landowners. It was only in the 20th century that it could truly be said that all citizens in the United Kingdom were fully included. It has been a hard road – for example, it took many years for everyone to be given the right to vote.
How does the rule of law work in the UK today? Pretty well, although there are some challenges.
It is accepted that no one is above the law, including the Government, politicians and even our Queen. Bribery and corruption within our legal system are very, very rare. Integrity is regarded as being fundamental within all areas of public life.
There are some challenges though:-
1. There have recently been a number of legal actions against British soldiers stationed in Iraq and Afghanistan. The suggestion is that some have acted inappropriately, using torture and even killing prisoners. This is a tricky area as there have been a number of false claims. The British Government is trying to do all possible to stop any such claims being made, in almost all circumstances. It is even an issue in our current General Election campaign.
2. I think you have heard of Brexit? Last year a referendum was held in the UK as to whether we should remain part of the European Union. As you know, the public decision was to leave. The UK Government wanted to proceed with the exit process without going through Parliament. This was challenged and the Supreme Court decided against the UK’s Prime Minister. Our Prime Minister complied with the Court’s decision and the issue was debated and decided in Parliament.
3. The legal case regarding the UK leaving the European Union was by means of ‘judicial review’. This is a specific type of legal action, where someone who is affected by a decision of the Executive can challenge that decision through our courts.
This type of proceedings has become more common over recent years. It means that our judges decide whether or not our Government has acted properly – the rule of law in action. Needless to say, there have been a number of attempts to restrict the ability of citizens to take judicial review proceedings.
ACCESS to JUSTICE:
Access to Justice is a fundamental part of the rule of law. I know a little about the Mozambican constitution and that it gives your citizens many rights and imposes a number of obligations. Strangely, we do not have a written constitution in the UK. But various Acts of Parliament, decided cases and long-held custom have given our citizens rights that they should be able to exercise.
This is an important point. We all agree that the rule of law is fundamental. But if there is insufficient access to justice then the rule of law becomes just a concept, an ideal. Rights cannot be exercised, responsibilities cannot be enforced.
We have a system in the UK known as “Legal Aid”, which provides free legal advice and representation for poorer citizens in respect of legal issues. It is similar to the concept of IPAJ here in Mozambique. The body responsible for Legal Aid in the UK does not, however, employ lawyers. Rather, individuals make a written application to the Legal Aid office with proof that they have little money and an explanation of their legal problem. The Legal Aid office then assesses the application and, if the person and the matter fits all the criteria, they pay a private lawyer a relatively modest amount to represent that person.
Legal Aid used to be very generous in the UK. Many people were able to access it and lawyers were paid a reasonable fee to represent the clients. However, successive governments have consistently failed to fund our Legal Aid system properly.
In particular:-
1. The fees paid to lawyers acting in Legal Aid cases have either been cut or not increased for over 20 years – with inflation, this is like a cut.
2. The areas of law that are covered by the Legal Aid system are being continually decreased.
3. It used to be that over 50% of the population qualified for some measure of Legal Aid. This has now been reduced to the very poorest.
It is very difficult to compare our Legal Aid system with what is available here in Mozambique. Our system would, in comparison, be seen as very generous. However, we do have problems in the UK. There are still injustices. Too many people try and represent themselves – it can be difficult to do so because our system is adversarial and there are often complex rules of evidence and procedures. Many people simply ‘walk away’. Further, fewer lawyers are choosing to concentrate upon Legal Aid work as the rates being paid to lawyers dealing with other areas of Law are so much higher. Expertise is being lost.
This is why we launched a national Access to Justice campaign when I was President. It was the year of Magna Carta, yet the rule of law was under threat because of increasing restrictions to access to justice.
To give an idea of some of the things that we emphasised-
1. That our Government should consider increasing Legal Aid funding in some specific areas. For example, in Domestic Violence cases. Our Ministry of Justice estimate that 1 in 5 women are subject to domestic violence in the UK every year. There could be more or less, but any such violence is not acceptable and victims must be given fair access to justice.
2. That some proceedings be simplified. In an adversarial system, a lot of cost is incurred by the advocacy necessary at Court hearings. Could it be that elements of a Civil system of law could be incorporated, with more responsibility upon judges to act in an inquisitorial capacity?
3. Further, that more of our lawyers give some of their time free of charge – pro bono – to assist those on limited means. In some countries pro bono work is compulsory. I do not think that it will become so in the UK, but it is so important that the number of lawyers providing such services increase. A good many do through different associations and many firms have pro-bono departments, but still not enough lawyers provide this type of service.
Just a few more comments. You are aware that I am a guest of AMAC, the Mozambican Association of Christian lawyers. I myself have a strong Christian faith and would like to finish with some thoughts from the Bible:-
A. In England, we regard the rule of law as dating from 1215 and the Magna Carta. Actually, it is a Biblical concept. In the time of the prophet Moses, God made it clear to the Israelites that when they had entered the Promised Land and appointed a king, he should not enrich himself at the expense of the people. He had to administer justice without fear or favour. He had to be fully conversant with the law and had to observe the law himself.
B. Secondly, judges and lawyers have an important role in the Kingdom of God.
This is from the Book of Proverbs, chapter 31 verses 8 and 9:-
“Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”
C. And judges have a vital role. Zechariah 7, verses 9 and 10 says this:-
“This is what the Lord Almighty said: ‘Administer true justice; show mercy and compassion to one another. Do not oppress the widow or the fatherless, the foreigner or the poor.”
Finally, Micah 6, verse 8:-
“He has shown you, O mortal, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.”
I like to remind lawyers and judges that they are those best placed to influence others, to be agents of change. Just think of some of the famous lawyers in the past. Abraham Lincoln, the American President who ended slavery in the US. Barack Obama, up until recently US President and one who was very concerned at social injustice. Gandhi, the great leader of change in India was originally a South African qualified lawyer. As was Nelson Mandela.
So, continue your work, it is right by God and it is vital for society.
Thank you for the opportunity to speak to you.
Caplen Justice Matters 