Why I back the legal aid reforms – and more

November 22 2010

It’s taken me a week to respond to Ken Clarke’s statement last Monday about legal aid, so unsurprisingly, quite a few people have got there before me. Jonathan Freedland in the Guardian is opposed “root and branch”. John Bolch thinks the proposals on family law do not make good reading, and impliedly calls them “crass” and “Daily Mail-esque”. Henry Witcomb said they’ll be catastrophic for medical negligence victims. Nearly Legal uses mainly moderate language, saying the proposals will cause “very large problems” in housing law, but does also call some of the reforms “obvious idiocies” and “bonkers”. Indre at the Migrant and Refugee Communities Forum says the consultation proposes a “shocking level of cuts”. Afua Hirsch at the Guardian said last Monday was “the worst day ever for legal aid”. She also provided a helpfully annotated version of the consultation paper; you just get the plain thing from me.

Legal Aid Reform Consultation

Last Monday was certainly a bad day if you look at law simply through the lens of legal aid. I’ve not worked as a legal aid lawyer apart from a short career at the criminal bar, so I claim no expertise in the workings of legal aid, and don’t look at it through that lens. For some, that will disqualify me instantly from comment. But I’m prepared to support these proposals, at least broadly. In fact in some ways, I’d go further. I’d better explain.

First, you have to remember the structural deficit. To be political for a moment, I would not take such a quick and drastic approach to cutting it as the government is doing. I’d prefer the Alistair Darling, Alan Johnson or the more radicallly Keynsian Balls/Cooper approach. So if I were Lord Chancellor, I wouldn’t be cutting as hard or as quickly as this. But that argument was lost in May, and in any case it’s not good enough to oppose cuts in their entirety as though none have to be made in spending across the board – even Ed Balls would cut, eventually – or as though legal aid is a special case, to be protected even as housing benefit is cut and student tuition fees rise. Nor does anyone who voted for either coalition party, or who failed to vote against them, have any right to complain at all. If you agreed with Nick, then you actively chose to make the “savage cuts” he spoke of long before the general election. So opposition to these cuts is only serious if it explains not just why cuts are wrong, but what or how else the government should cut instead.

If you have to cut, then you should do so by applying some sort of principles – not just trimming where you think you can get away with it, but looking fundamentally at what’s most most important in legal aid, and what other important things are not quite so vital. I think the government has done that. No, I’m not happy either that most children cases will be ineligible for legal aid, or that social welfare legal aid is going, to take two examples. But I do think these are less crucial than criminal legal aid, domestic violence, possession or asylum cases. If you disagree, which cases do you say should be cut instead?

But there’s a deeper reason not to trot out the standard lawyer’s shtick of arguing for the status quo. We all want access to justice, and equality before the law. But legal aid has failed to deliver either for many years. Providing real access to justice and real equality requires not so much subsidising the cost of law as radically reducing it and to some extent redistributing it.

Law never had its Nye Bevan. What we chose in the late forties, in accordance with the Law society’s preference, was not to effectively nationalise law, radically reform it or set up a National Legal Service – something I’ve thought in the past we should have, and still think worth considering. We chose to provide public funding on top of essentially the legal system we inherited from the Victorians, modernised in certain respects. Perhaps there wasn’t enough gold with which to stuff solicitors’ mouths as well as doctors’ – I don’t know. But that was what we got. Inside legal aid, you might be able to afford law, since you had protection from paying your opponent’s costs. Outside legal aid, you were in the legal equivalent of Harley Street. So long as most people could feel confident they’d get legal aid in most cases, that would be fine. But they don’t, and we could never afford that, at least not in an admirably post-deferential, argumentative society. One reason why the public will back these reforms is that most people don’t think they’d get legal aid – which they therefore see as purely a cost on them for the benefit of others. For most people law, unlike medicine, is as inaccessible now as it was in 1940, and these cuts will make no difference. That alone should tell us the model we’ve been pursuing so far is wrong. Justice at present is accessible to the rich and sometimes to some of the least well off; but it’s far from being accessible to everyone regardless of means, in the way the NHS is.

Various attempts to cut away at the traditional model of law – the invention of tribunals, for instance – have failed, as our ingrained conservatism has told us these places should be lawyerised in spite of the original intention behind them. The current need to cut spending forces us to try again to make law affordable, so that there’s access to justice even outside legal aid. The government seems to me to be making some steps in that direction – by continuing to fund mediation in family law, for instance, and, as the proposals seem to imply, making that the focus of family disputes. If that works, it would reduce the cost of law within what will still be publicly funded. And I’m attracted by the redistributive idea mentioned in paragraph 4.161 of the consultation, under which a rich husband (for instance) could be made to pay the cost of his poorer wife’s representation up front, instead of her being publicly funded.

When it comes to reducing the cost of law, the legal aid proposals need to be seen together with the government’s parallel proposals for reform of civil litigation funding and costs. Here, the government is proposing replacing the traditional “costs follow the event” system, under which the loser pays the winner’s legal costs, with something called “qualified one-way costs shifting”, which basically means individual claimants should not have to pay defendants’ costs, unless they’re themselves rich or being unreasonable. The government is talking about bringing this in in personal injury and some other cases, like libel. I’d like to see it brought in in all cases. The main barrier preventing ordinary people from suing powerful firms is the fear that their wealthy opponents can run up and threaten them with the massive costs of law firms and barristers. This has to be stopped, and making it the general rule that litigants bear their own costs will help. It should bring down the cost of law, too.

But what about equality? I’d achieve that not by subsidising the poor to spend like the rich – but by limiting what the rich can spend. What I’m mainly thinking of is reforming procedures so that it makes little sense to spend vast sums on lawyers. But I also think it may be right for courts to be able to limit spending on legal advice in advance, so that in effect firms can only instruct more lawyers than their unfunded individual opponents with permission of the court.

A perfect opportunity to build a prototype for this sort of law will be whatever the government comes up with to replace the current libel system. That should emphatically not be something like current libel law, rebalanced a bit. Libel law should be radically simplified and enforced by a fast, damages-free system in which each side bears its own costs whatever happens, in which the only remedies available should be injunctions (including a flexible “correction and apology” order) so that no cash at all is at stake, in which parties represent themselves unless given permission to be legally represented, and in which (apart from in prior restraint cases) initial rulings are made by a tribunal on paper without a hearing. I know this will sound like a shocking sort of EasyJustice to some readers. But what sort of justice does the current Rolls-Royce libel system deliver?

I also want more direct redistribution of legal funding. The legal aid reform consultation suggests a levy on solicitors’ client accounts, for instance, in order to fund legal aid. Good. Again, I’d go further, and impose some sort of additional tax on the money rich individuals and firms spend on commercial law firms, and use that money to fund legal aid.

I’m prepared to back the reforms, not because I don’t care about justice – but because I do. I wouldn’t cut as deep as this – but those who voted for this coalition, including many legal aid lawyers, overruled me on that in May. If I could honestly say that the coalition is cutting legal aid in areas so important that they should take priority over housing benefit, I would. I don’t think I can. But in any event, those of us who want universal access to justice and equality before the law must refocus ourselves, Crosland-style, on achieving those vital ends rather than on defending tooth-and-nail the inadequate and inefficient means we’ve used to pursue them since 1949.

If the coalition allows legal business to carry on as usual while cutting legal aid, I agree, last Monday will have been a bad day. But if this signals the start of major reforms to move us from an expensive, partly subsidised legal system to one that is cheap, genuinely accessible to anyone regardless of means, and funded disproportionately by its rich users – then last Monday will have been a bad day for legal aid, and a good one for law.

2010-11-22T15:11:50+00:00Tags: , |

Profiled at Normblog

November 12 2010

I’m the subject of this week’s Normblog profile, where if you have nothing better to do you can find out some stuff about me that’s not law.

If you have Spotify, you can hear that Fahrenheit 451 score I mention. You can even watch the whole film online, if you’re prepared to put up with subtitles and dodgy quality, and see what I mean about the spoken opening credits. If you watch to the end of part 1, you should realise why they’re spoken rather than written.

2010-11-12T16:56:47+00:00

The “national sovereignty” clause: broken belt and braces

November 11 2010

William Hague introduced his European Union Bill in the Commons today, and it will have its second reading as early as tomorrow – a debate that will no doubt be a treat. Much of the bill makes provision to require referendums before the UK can agree to treaty change conferring new power on the EU, and to require Parliamentary approval before ministers can sign the UK up to a series of other decisions, mainly under the various “passerelles” or “ratchet clauses” inserted into the EU treaties at Lisbon.

But clause 18 is the “national sovereignty clause” William Hague promised last month, and which I’ve written about and spoken to Charon QC about before. It’s worth remembering that this idea started as a proposal for an entire bill as a consolation prize to Eurosceptics for the abandonment of a retrospective referendum on the Lisbon Treaty. At the time he promised it, David Cameron vaguely hinted it might somehow set a limit to the effect of EU law in this country, or to the power of the European Court of Justice, or to the “creeping competence” of the EU – or something. Then, at this year’s Conservative conference, William Hague promised a clause that would “reaffirm once and for all the sovereignty of our ancient parliament”.

Well, now we can see the clause. This is what it says:

Status of EU law dependent on continuing statutory basis

It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom.

The good news is that my worst fears about it have not been realised. This clause does not aim at defining, affirming or otherwise affecting Parliamentary sovereignty itself, so it doesn’t risk cutting it down or creating a two-tier model of sovereignty depending on whether EU law is in play. Fine.

But the clause is utterly pointless, and has no legal effects at all. It’s already perfectly plain that EU law only has effect in this country by Act of Parliament – the European Communities Act 1972.

The explanatory notes to the bill admit this. Paragraphs 104-5 say the clause is

… a declaratory provision … EU law is enforceable in the UK only because domestic legislation, and in particular the European Communities Act 1972, makes express provision for this.

Paragraph 106 tries to give some sort of justification for the clause:

This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts. By placing on a statutory footing the common law principle that EU law takes effect in the UK through the will of Parliament and by virtue of an Act of Parliament, this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law and principles which has become an integral part of the UK’s legal system independent of statute.

but any argument that the passage of 38 years means EU law has automatic effect in the UK, by-passing Parliament to become permanently locked into our system, is eccentric to say the least. Legislating pre-emptively to try to combat it is just as weird. And if there is any risk that “the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”, it necessarily follows that the authority of this clause would be eroded, too. So this isn’t a straightforward case of “belt and braces”. Obsessed with anxiety about his perfectly sound braces, William Hague is putting on a broken belt with no buckle, and looks pretty daft to me. Again, paras. 109-110 of the explanatory notes give the game away:

This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The rights and obligations assumed by the UK on becoming a member of the EU remain intact … This clause is declaratory of the existing common law position …

I wonder how much of a fight there’s been in government about this between Eurosceptic Tories and Europhile LibDems – and whether the final discussions on the drafting explain William Hague’s absence in China recently.

I also wonder how Eurosceptics like Bill Cash will greet it. They’ll certainly welcome the referendum clauses in this bill, which are undoubtedly a win for them. But if they think clause 18 offers them anything worth having, they’ll buy anything.

Is squaring a troublesome faction in your own party really as easy as this?

2010-11-11T22:25:03+00:00Tags: , , , |

Cala Homes v Communities Secretary

November 10 2010

You may know from the news that the Administrative Court has ruled unlawful Eric Pickles’s revocation of regional strategies in England. He’ll have to wait until his Localism Bill comes into force in order to abolish them.

Sales J’s judgment is interesting as an application of the Padfield principle, that ministers’ statutory powers must be exercised in a way which promotes and does not undermine the policy and objects of the enabling statute. Eric Pickles’s use of his power under section 79(6) of the Local Democracy, Economic Development and Construction Act 2009 for the purpose of getting rid of the entire regional strategy system, in Sales J’s view, frustrated the underlying policy of the 2009 Act that there should normally be a regional strategy in place for each region.

2010-11-10T15:47:23+00:00Tags: , |

R v Chaytor, Morley, Devine and Hanningfield

November 10 2010

It was always obvious that Parliamentary privilege doesn’t prevent the trial of MPs accused of expenses fraud – and unsurprisingly, the Supreme Court has ruled that it doesn’t. There’s no written judgment yet, but I’ll link to it when it’s available.

In the meantime, you might be interested in the Court of Appeal judgment given in July. Here’s what the Lord Chief Justice, Master of the Rolls and President of the Queen’s bench division concluded:

If we may respectfully say so, we are not in the least surprised that no attempt has been made by the Speaker or Lord Speaker to seek to intervene in these proceedings, nor even to draw the attention of the court to any potential difficulty in the context of parliamentary privilege, nor even to ask the court to reflect on the possibility that parliamentary privilege may be engaged.

It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament. With the necessary exception in relation to the exercise of freedom of speech, it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of Parliament might require or permit him or her to commit crime, or in which the commission of crime could form part of the proceedings in the House for the purposes of article 9 of the Bill of Rights. Equally we cannot discern from principle or authority that privilege or immunity in relation to such conduct may arise merely because the allegations are based on activities which have taken place “within the walls” of Parliament.

The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach. If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes. Even stretching language to its limits we are unable to envisage how dishonest claims by members of Parliament for their expenses or allowances begin to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties. In our judgment no question of privilege arises, and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege.

I expect Lord Phillips and his colleagues to draw the same clear conclusion. This ruling isn’t just unsurprising in political terms, as Iain Dale suggests. It was entirely predictable in legal terms, too. The Justices won’t have had to trouble themselves with the risks of public outrage at their ruling.

I hope this will put an end to the exorbitant claims that have been made about the scope of Parliamentary privilege since the Damian Green affair.

2010-11-10T14:43:12+00:00Tags: , , , , |

Watkins v Woolas

November 6 2010

All the media has been reporting the case Phil Woolas lost in the High Court yesterday, sitting as an Election Court. So you probably know his election in Oldham East and Saddleworth has to be run again, and that, having under section 158 of the Representation of the People Act 1983 been reported guilty by the Court of an illegal practice under section 106, he must now vacate his Commons seat and is barred from standing in the resulting by-election, and from standing for Parliament or any elective office for the next three years, under section 160(4) and (5)(b).

Interesting, this of all weeks, that under section 160(4)(a)(i) he’s also incapable of being on the electoral register or voting for that three-year period. In that respect he’ll soon be worse off than prisoners convicted of much worse offences. *

Here’s the judgment of the Election Court. It’s interesting for the way the judges deal with the proportionality of the interference its finding makes with Mr. Woolas’s Convention right to freedom of expression.

*Oops! I missed s160(4A), which limits this bar only to those guilty of corrupt and illegal practices in relation to voting. Thanks to Unity for putting me straight in comments. No prisoner voting irony, then.

2010-11-06T13:28:38+00:00Tags: , , |

Prisoners’ votes, and judges going rogue

November 3 2010

I’m agnostic about whether prisoners should be allowed to vote – I can see the rehabilitation argument, up to a point, but I understand the view that disfranchisement (as the legislation puts it) is part of punishment, too. So if government had decided to change things as part of its political or penal reform agenda, I’d have no problem. But it’s not like that of course. It has to change things because of the judgment of the European Court of Human Rights in Hirst v UK that UK law breaches Article 3 of Protocol 1 to the ECHR.

I’m amazed at the number of people, including many MPs in the Commons yesterday, and even a former Law Lord, who somehow seem to think we can go on resisting Hirst. We can’t. We have a clear legal obligation to comply with it.

In terms of practical risks, the real fear is not test cases in our courts – it’s lawful in domestic legal terms for the UK to maintain its prisoner voting ban, since section 3 of the Representation of the People Act 1983 is incompatible with human rights (odd and counter-intuitive, I know, but that really is how the Human Rights Act is designed to work). So no prisoner can get damages here. Though it is possible they could get low damages eventually in Strasbourg after their legal cases have failed here.

The real risk was that the UK might just be the first state hauled back before the court for non-compliance, under new “infraction” procedures that came in this year. Unlikely, since two thirds of signatory states to the ECHR would have had to vote to put the UK in the dock (many of whom themselves restrict prisoners from voting), but just to be the first possible “infractee” would have been daft for a country that rightly thinks it’s better at human rights than many others who have signed the ECHR.

So what exactly should the government do? Unfortunately it’s not just a matter, any more, of complying with Hirst – though we must do that. Since then there’s been another case, Frodl v Austria (not “Froidl”, as is being reported in various media – a Froidlian slip, perhaps?) in which the ECtHR has gone further, saying (para. 28)

Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings

and then seeming to narrow this yet further (para. 34):

Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.

This is breathtaking stuff. First, because the Court has gone way beyond its supervisory role, and has got into detailed policy-making for states, even though it claims in theory that (para. 23 of Frodl)

Contracting States must be allowed a wide margin of appreciation in this sphere since there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.

Secondly, though, it’s breathtaking because the Court claims to be relying on detailed criteria laid down in Hirst; but if you look back at the Hirst judgment you see that it does no such thing. Quite the opposite. In Hirst, the court says (paras. 83 and 84)

… as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention, the Court notes that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the State concerned to choose … the means to be used in its domestic legal order in order to discharge its obligation … In a case such as the present … the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1.

In Frodl, then, the ECtHR went rogue, stepping beyond its proper role, ignoring a key principle of restraint and even distorting the meaning of its own earlier judgment in order to justify going much further. Frodl really is a stinker of a judgment. If Strasbourg sticks by that line, then almost all prisoners in the UK will get the vote in time, no matter what compromise is cooked up now. But the government may hope Frodl is a freak outlier, and that a reform short of its requirements will survive challenge.

Because not all the judges in Strasbourg agree. In Hirst, the government lost on appeal to the Grand Chamber by a majority vote of 12 judges to 5. The dissenting majority (which included the then and current Presidents of the Court) said (paras. 5 and 6, dissenting opinion of Judges Wildhaber, Costa et al)

In our opinion this categorical finding is difficult to reconcile with the declared intention to adhere to the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system. In any event, the lack of precision in the wording of that Article and the sensitive political assessments involved call for caution. Unless restrictions impair the very essence of the right to vote or are arbitrary, national legislation on voting rights should be declared incompatible with Article 3 only if weighty reasons justify such a finding … [the majority] conclusion is in fact based on a “dynamic and evolutive” interpretation of Article 3 of Protocol No 1 … However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An “evolutive” or “dynamic” interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved. We fail to see that this is so in the present case.

Judge Costa, in his additional dissenting judgment (para. 9), criticised the majority which

on the one hand theoretically asserts a wide margin of appreciation for the States as to the conditions in which a subjective right (derived from judicial interpretation!) may be exercised, but goes on to hold that there has been a violation of that right, thereby depriving the State of all margin and all means of appreciation.

In Frodl, the Russian Judge Kovler admirably stood by his dissent. What made the Norwegian Judge Jebens change his mind, I can’t say. He ought to have explained his reasoning in a concurring judgment.

None of these criticisms changes the fact that Hirst has to be complied with, of course. The ECtHR needs watching, though. In my view it’s a good thing, and I support it. But it has a tendency sometimes to go rogue, oblivious of its subsidiary role, and to limit excessively the scope for national policymaking. There’s no better example than its recent decisions on prisoners and voting.

Don’t forget Charon QC interviewed me on all this last week. Listen here.

2010-11-03T15:07:35+00:00Tags: , , |

Charon QC podcast: Prisoners and the vote

October 27 2010

I spoke to Charon QC earlier about the issue of prisoners’ voting, following Joshua Rozenberg’s recent Guardian Law piece on the subject and the guest post on his blog by John Hirst. We give a bit of background about the ECHR and the European Court of Human Rights before discussing the judgments in Hirst v UK and Frodl v Austria, what the government now has to do legally, what it’s probably thinking about politically and what may happen now.

I’m quite critical of Hirst, in which I think the dissenting majority of five judges was right, and especially of Frodl, in which it seems to me the ECtHR unaccountably distorts Hirst, interpreting it as having laid down principles it expressly avoided laying down and in reality going much further and effectively taking all policy choice away from governments. Well done to Judge Kovler for standing by his dissent in Hirst. Why Judge Jebens changed his mind is unexplained.

Listen to the podcast here.

You’re welcome to comment here of course – but there’s already a discussion going on at Charon’s blog about it, so you might want to join in there.

2010-10-27T14:30:03+00:00Tags: , , , , |

UK Supreme Court judgment: Cadder v H.M. Advocate

October 26 2010

The Supreme Court has given judgment today in this case about whether Scottish criminal suspects must have the right to a lawyer when being questioned in the first hours after they’re arrested and detained, a right which legislation currently doesn’t give them. Or more strictly perhaps, it’s about whether evidence obtained through questioning is admissible if the suspect doesn’t have the right to a lawyer. I mentioned the case a few days ago.

Somewhat unsurprisingly, the Justices have followed the clear line of authority from the European Court of Human Rights that there must be access to a lawyer from the beginning of detention, and from the start of questioning – as a general rule, at least, subject to only limited exceptions. It’s quite astonishing that this right has not been recognised in Scots law until now; this case is one of the shining examples of the benefits of the Human Rights Act. Practice in Scottish police stations will change permanently as a result of this, and for the better, though the Scottish legal aid budget is likey to go up – which will not be convenient for Scottish justice minister Kenny MacAskill or for Alex Salmond. MacAskill has already responded. I can’t understand this comment –

We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly.

– what disadvantage is he on about? But he is legislating to provide for public funding for police station advice – and to lengthen the period of detention, presumably to an initial 24 hours to reflect the position in England and Wales.

The big worry in Scotland was about the possible reopening of past cases, but Lords Hope and Rodger in their judgments have sought to dispel those jitters, Lord Rodger pointing out (paras. 104-106) the importance of time-limits – the procedural hurdle Tony Kelly was quoted as referring to in the Herald – and both Justices rely on Murray CJ’s approach in the Supreme Court of Ireland in A v The Governor of Arbour Hill Prison, Lord Rodger at paragraph 101 citing him at some length:

36. Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.

37. Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be capable of being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was applied to the criminal law it would in principle suggest that every final verdict of a trial or decision of a court of appeal should be set aside or, where possible, retried in the light of subsequent decisions where such subsequent decision could be claimed to provide a potential advantage to a party in such a retrial. In principle both acquittals and convictions could be open to retrial. But one has only to pose the question to see the answer. No one has ever suggested that every time there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have had some bearing on previous and finally decided cases, civil or criminal, that such cases be reopened or the decisions set aside.

38. It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect of judicial decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences would cause widespread injustices.

So I’m not sure Kenny MacAskill really needs to legislate to prevent turmoil in the Scottish courts, or that he can safely go beyond what Lords Hope and Rodger have said without either breaching the right to a fair hearing, which implies a right to access to a court in appropriate circumstances, or limiting the powers of the Scottish Criminal Cases Review Commission. But he’s going to try something, apparently. Let’s see what he comes up with.

Anyway, the 26th of October 2010 is a far better day for Scottish justice than was the 20th of August 2009.

2010-10-26T14:51:13+00:00Tags: , , , , |
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