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Lady Hale, in a speech to the Law Society entitled ‘Equal Access to Justice in the Big Society’, warned that the government’s legal aid plans will have a ‘disproportionate effect upon the poorest and most vulnerable in society’. The Guardian reported that Lady Hale’s ‘unusually forthright speech’ was likely to be received as a ‘direct challenge’ to government policy. In an excellent post on the UK Human Rights Blog, Adam Wagner rightly pointed out that ‘Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.’ Despite this caveat, the critical tenor of Lady Hale’s speech was clear, even though Lady Hale was careful not to explicitly express her personal opinion.
Many will support Lady Hale’s willingness to speak out, and agree with her criticisms and lucid analysis of the meaning of ‘access to justice’ (her speech echoed concerns put forward by the Bar Council and the Law Society). However, it is highly unusual for a judge, especially a Supreme Court Justice, to criticise government policy a few days before a bill is due to be debated. Obviously judges should, and do, comment on judicial matters. But there is an arguable difference between an extra-judicial lecture on general matters concerning the ongoing development of the judicial system and one that challenges a specific current government policy – even if only through the medium of compiling and highlighting the criticisms made by other bodies.
As Lady Hale herself recognised on page 9 and 10 of her speech, it is inevitable that cases regarding the impact of the legal aid cuts will appear before the Supreme Court. Although Lady Hale explicitly self-censored herself with regard to such arguments as might arise, her speech gives a good indication of what her view of those arguments may be. When such a case does arise it will be interesting to see if an application is made that Lady Hale recuse herself, and what the outcome of such an application might be. In the current climate, as the judiciary is continually attacked (often erroneously) for being ‘too political’ it might be thought that judges would err on the side of caution in commenting on government policy. On the other hand, with the legal system facing unprecedented pressure from the proposed cuts, it may be that desperate times call for desperate measures.
2 comments
Jeff Thomas said:
04/07/2011 at 11:27
In my view the comments are to be applauded as this lady has a duty to protect the operation and access of the law in the UK. She sees it as her duty to caution in this way and not to do so would be morally wrong. I think that access to justice is a very important issue and if these changes mean that those with no capital cannot challenge those with enormous cash reserves the implications for us as a society are appauling. Take cases against massive pharmaceutical companies as an example without legal aid they are now immposible. There have been hi profile cases of absurdity such as the Maxwell Brothers but in general the provision of legal aid has led to fairness and equal access. If judges say nothing about policies that will destroy natural justice issues I would suggest they have failed the oath they took at the start of their career and should hang their heads in shame. The only thing thats imperative is that they critise such plans wherever they come from and are not partisan in their objections. This ladys balance careful critique is to me a sign of her intense integrity and beleif in the law and access to it for all. I applaud her actions and hope it causes a real debate.