Our courts and our system of laws developed over many centuries and based on the common-law tradition are part and parcel of our British identity. We are proud of them and of the principles and values for which they stands: the rule of law, equality of all before the law, the habeas corpus, and being innocent until proven guilty. This is why the proponents of leaving Europe as well as Team Cameron all made it a central plank of the platform to regain control of our legal system by limiting or even eliminating the influence of European law, of the European Court of Justice, of the European Court of Human Rights on our own courts.
But the reality of those who actually use our court system is very different: for the most part they are caught up in what has become an unaffordable, inaccessible, and ineffective system. Solicitors and barristers themselves stood up more than once to protest the current government policy of cutting legal aid budgets assisting those who can least afford it.
But the rot in our justice system goes much deeper than that: our legal profession – solicitors, barristers, judges - has become the third leg of the triptych of institutions that has been appropriated by the established London élites - together with the Westminster Parliament and the City of London. Our courts are dominated by a predominantly Oxbridge educated élite that truly believes it is entitled to fill the profession’s top positions on judges’ benches as well as in barristers’ and solicitors’ seats. Membership in the European Union and acceptance of European Union legislation as an integral part of UK laws endangers this dominance. This is the real reason why Cameron wants to limit the EU’s effects on our court system and to abolish the UK’s 1998 Human Rights Act.
Philip Sanders QC said when delivering the 2015 Elson Ethics Lecture, at St. George’s House, Winsor, the reason why the human rights act “is now totemically denounced as an undemocratic fetter on a sovereign British state and its Parliament, and a threat to the fabric of our unwritten constitution” is because for the first time it enshrines in a parliamentary act the ability of our court system to hold the British state accountable for its actions and to evaluate our legislation in accordance with common European standards. This finally enshrines in British laws Winston Churchill’s vision enunciated more than seven decades ago arguing for “the enthronement of the rights of man” by ending the omnipotence of the state and by offering rights and protections against governmental excess to individuals. Sands concludes his lecture with a searing indictment of the current Tory government and its triple policy of restricting our Courts’ ability to interpret and apply EU law in British courts, of repealing the Human Rights Act 1998, and ultimately of withdrawing from the European Convention on Human Rights.
“I fear that the Government is playing a dangerous game. This generation of politicians and newspaper editors has no actual experience of whence we came, and apparently no great sense of history either. One has the sense that many in our government would like to take us back to the perceived idyll of the 1930s, an isolated UK that is stripped of its connections to the continent of Europe, that leaves its own people deprived of rights or the means to enforce them before our courts, that fawns to the “golden era” of cash injections from a country that has scant regard for the rights of individuals… Talk of repeal and withdrawal threatens profound consequences for the protection of human rights in this country, for the United Kingdom’s engagement with Europe, for the United Kingdom, and for international law itself, which is only at the early stages of reinventing itself into a system that can look after the needs of people not states.”
Reforming our system of justice and our legal profession has become one of the critical priorities of British society in the 21st century. This cannot be done if the London establishment élite maintains its monopoly over its top positions at all levels of the judiciary, in solicitors’ offices, in barrister's chambers. Our only hope for a radical and thoroughly reform - for more accessible courts, for more affordable fees, for more expeditious an fairer processes, for more reasonable decisions, and above all for our continuing ability to hold our governments accountable according to internationally accepted principles of justice - is to continue to allow our legal system to interact through the medium of European law with other countries’ legal systems and to develop benchmarks of fairness, of Justice, of accountability, and of accessibility throughout Britain and the European Union.