Monday, 15 November 2010

Legal Aid & 'Clarke Cuts'

Whilst reading about Ken Clarke's proposals for the reduction in funding for legal aid, I wonder how the EU and - more importantly - the ECJ views this.

In particular I would refer readers to the TEU, Article 2:
"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."
and Article 3:
"It shall combat social exclusion and discrimination, and shall promote social justice and protection....."
It may well be I am 'mis-reading' these two Articles, but how long will it be for the first legal challenge to surface?

Just asking, like......................

4 comments:

Bearz said...

Writing as an ordinary citizen and not a hifalutin Lawyer, is it not the human right to have unfettered access to a Court of Justice, i.e. you may apply to a Court for redress as Plaintiff/Complainant and rebut complaint as Defendant as a free person within a free society.

No one has the loss of right to defend themselves or right a wrong on their own behalf before any court up to and including the Supreme Court.

The cost of acquiring legal support has become more expensive and for the most part legal aid remains available.

I do not believe that the measures are intolerable but no doubt will be challenged.

However, the cost of spurious, ill-founded and ill-advised court proceedings may well fall away as these measures bite and, far be it for me to say, it would be many a view that the real losers will not be the poor, the oppressed or the innocent but Lawyers whose pockets are deep and the contents of which never see the light of day!

Witterings From Witney said...

Bearz:

I totally agree that the cost of legal aid has rocketed and out of all proportion, and that the no-win, no-fee lawyers need their income cut, however under EU law it is discriminatory to legislate against any section of society (see my post on the Tullie Museum) which is what the Coalition propose - and it is on that aspect that I believe they may well 'fall foul'.

Of course, there is also the point, in which I firmly believe, that it is up to us as a nation to decide who gets what - and I still hold to that view, so the measures to clip the wings of the no-fee lawyers is one I applaud.

Unfortunately I think you miss the point of my post, in that it does not matter what we, as a people think, we have no say over the way we are governed, nor over what view the EU and the ECJ may take.

Bearz said...

I dare say we are actually singing from the same hymn sheet with regards to the sanctimonious superiority of the EU to what should be a British matter as it solely impacts British citizens or vistors requiring support within the British Legal System.

My point is that it is Justice and access to Courts where is the freeborn persons right to defend or argue their case that is THE freedom that is not being removed.

The right to free or means tested legal aid is an UK tradition that has evolved since the mid-1940s along with many other, peculiarly British, free-of-apparent-cost freedoms ... Free Healthcare at point of service being, perhaps, the greatest and best example.

We, British, expect free healthcare to be provided from cradle to grave and this is provided to us by the State. What people forget is that the people actually contribute to the cost of the NHS through tax and National Insurance contributions (although I am sure that is never enough to feed the hungry beast!)

Similarly, the British (especially Lawyers) have come to expect that the State will fund all forms of litigation and that free legal support is a human right. Again this seeming right is funded by the taxpayer

My argument is that the human rights that the EU and ECJ might be asked to deliberate upon is that the 'freedom' and 'right' is access to healthcare (which we do all enjoy in the UK) and Courts (which we also all enjoy(?) in the UK) – not the alleviation of cost to be funded by the taxpayer - and those ‘rights’ have not been removed.

Having the cost borne by the public purse is not the right that will no doubt be tested even though we, British, have become attuned to thinking that free-of-charge public service is a right.

Our EU Comrades (or fellow slaves as I prefer to think of them) have access to healthcare and justice but they have to pay up front with Insurance. Hence I think any challenges to the apparent loss of State-funded Legal Aid might be on a hiding to nothing.

My other secret weapon in support of my view is that this change to Legal Aid funding is masterminded by Ken Clarke, probably the main Conservative culprit for being pro-Europe Unionism and all its wondrous benefits and freedoms … he is hardly likely to instigate such a fundamental change to the British Legal Aid system without believing that it is in compliance with his beloved European “EU” Project idealism?

Witterings From Witney said...

Bearz:

Re first para, yes we are on the same hymn sheet.

At the outset perhaps I shud have said I am playing Devil's Advocate and had hoped that readers would appreciate that.

The principle of the Tullie Museum ruling holds good for this withdrawal of a right in that it is a form of discrimination - and it is on that aspect alone that I believe there will be a legal challenge, or that the ECJ will step in to force a change in the proposed legislation.

I accept your point that Ken Clarke, being the EU lover he is, probably does know EU law, however he is under pressure to make cuts and being a politician he will obviously try and get a policy in 'under the noses' of the EU and hope to get away with it. Previous examples of this happening are well known.

Probably like you I find the fact that failed asylum seekers and prisoners are not affected, yet the people paying tax and funding the scheme are so affected. (pensioners and the like).