Future Lawyer Blog

Kherbane gives it to us straight: British Democracy and Legal Reforms

The coalition government has much to answer for since 2010. Yet what seems to escape almost all notice is their relentless attacks on the very fabric of British democracy.

The conventional guarantee against totalitarianism in any democratic society is the Rule of Law, separation of powers, and public access to legitimate scrutiny of executive action. This was arguably a well-founded existence in Britain, until recently.

Legal Aid Cuts

It is widely known that the Tories have persistently imposed significant legal aid cuts in an effort to reform public spending.

What does this mean? In short, the most vulnerable in society are no longer able to afford legal representation in almost half as many trials as before 2011.

In Family litigation for example, where legal aid has been completely removed, parties now often represent themselves. This has led to cases taking much longer as there is understandably a lack of procedural experience, qualifications, and other necessary skills. Ironically, this means that any money saved by legal aid cuts is likely lost to the cost of consequently prolonged trials.

Also, the subsequent loss of “equality of arms” in criminal cases will undoubtedly lead to an increase in miscarriages of justice (thereby further litigation costs in appeals), less trust in our legal system (thereby further public spending on indirectly subsidising legal-help charities which will necessarily pop up), and an infraction of the fundamental right to a fair trial (prepare a hefty fine from the Strasbourg Court).

Secret Courts

Less of us are aware of the “Secret Courts” Bill passed by the government in 2013.

In effect, this allows a party to be disregarded from their own trial in certain instances. For example, a defendant, claimant, or appellant would be disallowed access to evidence used against them by the government (under the auspices of “national security”). Any legal representation would also be restricted in relation to said evidence. In fact, you would not be able to challenge any detail of this evidence. In your absence, a “special advocate” appointed by the government will represent you behind closed doors, with no instructions.

This is a brazen attack on the concept of an “open fair trial”; a source of pride for our world-renowned legal system. In throwing salt on the wound, a last-minute amendment suggested by Caroline Lucas of the Green Party would have allowed Judges to consider “public interest” requirements before qualifying these “secret” hearings. This was rejected by the Liberal Democrats. Such a fair-minded provision could have maintained, at the very least, some impartial safeguard to guarantee a counterbalance with national security interests in determining government applications.

Capping Human Rights

Civil liberties are crucial to us all. Unfortunately, Theresa May’s reforms disagree. The barrage of infringements on fundamental freedoms, ranging from purported terrorism legislation which discriminates against non-nationals to immigration controls which discriminate against even nationals has been a hurricane of rushed and overlooked policies.

For example, prior to 2014 litigants could appeal a decision made by the Home Office which “is not in accordance with immigration rules”; bizarrely, the Immigration Act 2014 repeals this right. It also dictates what judges should and should not take into account when considering certain cases, and attempts to disregard Article 8 (of the European Convention on Human Rights) Right to Family Life in favour of restrained Immigration Rules like Appendix FM. This is a damning restriction on the judiciary’s discretion and infringes the constitutional Human Rights Act 1998, section 6 which demands that public authorities comply with the fundamental freedoms of individuals set out in the Convention.

Restricting Judicial Review

Judicial review is the only mechanism in the United Kingdom which allows for an impartial court of law to review executive action. Without an accessible and effective judicial review, public scrutiny of any weight would be meaningless and incapable of giving rise to legal action.

In December, a Bill aimed at curtailing judicial review was defeated in the House of Lords for the second time. The coalition government made no amendments after the first rejection, despite heavy criticism from experts.

Judicial review is already a “very limited form of redress“, and continued attempts to restrict it only seek to insulate the government from legitimate challenges.

Credit: Images Money

Credit: Images Money

Ridiculous Costs

Employment tribunals for example are now largely inaccessible due to the elevated costs of lodging a claim.

The result has been an instantaneous deterrent for many claimants whom would otherwise bring unfair dismissal, discrimination, or contractual breach claims- the number of claims has already seen a sharp decline.

For the sake of identifying social policy problems, setting meaningful precedent, and responding to concerns arising in a just society, these type of claims must be heard.

Trans-Atlantic Trade & Investment Partnership

During the 2014 G20 Summit, David Cameron proudly reinforced the United Kingdom’s support for the EU ratifying TTIP.

TTIP facilitates trade with the US by levelling certain regulations- be they of a social, environmental, or health and safety kind.

However, TTIP is not governed by any form of national law (much less, Britain’s). In fact, TTIP provides its own judicial mechanism: Investor State Dispute Settlements.

This allows corporations to sue “defendant” governments in secretive tribunals, away from the public eye and above the jurisdiction of domestic law.

For example, a government can be sued for seeking to renationalise a previous public service (see Bechetel and Bolivia), or for imposing health and safety regulations on the sale of tobacco (see Australia and Phillip Morris). In practice, this means if a next Parliament sought to renationalise Royal Mail, or completely take back the NHS, they would be subjected to large bills from US corporate giants.

This is probably one of the most undemocratic pieces of legislation ever drafted. It bypasses the peoples’ will, Rule of Law, and in place offers a system which seeks to forward a corporate agenda based on building profit and isolating regimes to their current state under the looming threat of “projected profits”.


Cutting public spending can be done in a variety of fair and efficient ways. None of which include repressing access to the judiciary; a vital institution for enforcing basic rights and livelihood.

Whether deliberate or not, a continuation of the above policies will erect a system which insulates the government from public scrutiny (judicial review restrictions), represses the court’s role in ascertaining human rights (capping Convention Rights), sabotages open fair trials (Secret Courts), allows a disproportionate protection for corporations and employers (TTIP and ridiculous civil litigation costs), and finally, induces an unjust limitation on legal representation to the most vulnerable (legal aid cuts).

Many thanks to Rabah Kherbane, LLB3 student at the City Law School. This excellently written piece represents his personal views, and are not attributed to the University. Rabah has recently had several pieces published: in the New Statesman: Take care when talking about “British values” – it can end badly (22 Dec 2014) and The Huffington Post: A Muslim’s Response to the 25,000 Anti-Islam Protesters in Germany (19 Jan 2015).

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