The 2017 UK General Election – what does it mean for access to justice and human rights?

Faced with growing political instability and uncertainty surrounding Britain’s departure from the EU, Prime Minister Theresa May’s decision to call a snap General Election could not have come at a more crucial time in our history.
Whilst the public spotlight is very much focused on the implications of Brexit, it is essential to ensure that key issues such as access to justice and the protection of fundamental human rights are properly addressed and prioritised. The recent publication of party manifestos provides a good opportunity to explore how the three main political parties plan to tackle these issues.

The Labour Party

“A manifesto for a better, fairer Britain”

The Labour Party launched its manifesto on 15 May. Billed as a manifesto “for the many, not the few”, the Labour Party has put a strong emphasis on access to justice, including extending and reviewing legal aid and reviewing legal funding more widely.

The main points of interest from a human rights and access to justice perspective are:

• To extend the Freedom of Information Act 2000 to private companies that run public services;
• To re-establish legal aid in family law cases, including early advice entitlements in Family Courts;
• To reintroduce funding for the preparation of judicial review cases. The manifesto supports judicial review, which it sees as an “important way of holding government to account.” Unlike the Conservative Party, Labour says that there are already “sufficient safeguards to discourage unmeritorious cases”;
• To resist any Conservative proposals to abolish the right to seek legal redress against the Ministry of Defence where compensation claims cannot be otherwise settled;
• To reverse the unfair employment tribunal fees;
• To review the legal aid means tests, including a ‘capital test’ for those on income-related benefits and consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach;
• To retain the Human Rights Act 1998;
• To introduce a ratio with courts, to establish the maximum difference between actual costs and charges levied, whilst not prohibiting the courts from raising money to provide services;
• To continue the work of extending the use of technology in the court service “where it enhances access to justice, timely dispute resolution and efficient administration”; and
• To hold public inquiries into Orgreave and blacklisting, and release all papers relating to the Shrewsbury 24 trials and the 37 Cammell Laird shipyard workers.

It is welcome, although no surprise, to learn that Labour, under whom the Human Rights Act 1998 was introduced, still stands firmly behind it. The party also clearly regards the judicial review process as an essential mechanism for checking governmental power, recognising the need for adequate public funding if challenges are to be possible.

The concept of access to justice for all is at the heart of Labour’s policies and rather than continuing the spiral of cuts to legal aid, Labour seeks to review the availability of legal aid and to rectify issues caused by recent cuts.

The plan to revisit the ‘capital test’ for legal aid eligibility and to extend funding for family law cases however, while welcome, does not go far enough in terms of the specific issues that need to be addressed in relation to legal aid.

Further, the essential commitment to reviewing access to justice is too broad and non-specific to offer solid assurances as to what improvements will be made. While the cut to employment tribunal fees is welcome, there is no commitment to reversing the vast court fee increases which have recently been made, and which prevent many from pursuing claims.

The Conservative Party

“Forward, Together”

The manifesto, launched on 18 May, promises a “stronger Britain and a prosperous future”. Like Labour, the Conservative Party have touched on many crucial human rights and public law issues.

The main points of interest from this perspective are as follows:

• Like Labour, the Conservatives pledge to continue modernising the courts, improving court buildings and facilities, making it easier for people to resolve disputes and secure justice;
• To introduce a Domestic Violence and Abuse Bill and create a domestic violence and abuse commissioner;
• To ensure publicly-funded advocates have specialist training in handling victims before taking on serious sexual offences cases;
• To ensure that child victims and victims of sexual violence are able to be cross-examined before their trial without the distress of having to appear in court;
• In contrast to Labour, the Conservative Party pledge to immunise military personnel from accountability under the ECHR – the manifesto says the Conservatives will strengthen “legal services regulation” and also restrict legal aid for “unscrupulous law firms that issue vexatious legal claims against the armed forces”;
• To introduce better compensation for injured armed forces personnel and the families of those killed in combat;
• To reform personal injury, with a pledge to “reduce insurance costs for ordinary motorists by cracking down on fraudulent and exaggerated whiplash claims” and to consider a ban on companies’ cold calling people encouraging them to make false personal injury claims;
• Despite pledging in their 2015 manifesto to repeal the Human Rights Act 1998 and replace it with a new ‘British Bill of Rights’, the 2017 manifesto says it “will not repeal or replace the Human Rights Act while the process of Brexit is underway”, rather the UK “will remain a signatory to the European Convention on Human Rights for the duration of the next parliament”. The Conservative party pledges instead to look at the Human Rights legal framework after Britain’s exit has concluded;
• To abandon the ‘Leveson 2′ inquiry, an investigation into the relationship between journalists and the police. This is a move that marks a major shift from the policy of Theresa May’s predecessor David Cameron, who committed the coalition government to a second inquiry into the press at the time of Lord Justice Leveson’s first report in November 2012; and
• Similarly, to repeal Section 40 of the Crime and Courts Act which would – if enacted – force newspapers to pay their opponents’ legal costs linked to libel and privacy actions, even if they win in court. This was one of the key recommendations of Lord Justice Leveson’s first inquiry into the culture, practices and ethics of the press.

With a strong focus being placed on Brexit negotiations, the Conservatives have sought to hold off on tackling the controversial issue of repealing the Human Rights Act, wanting to wait until the process of exiting the EU is complete. While this offers some welcome respite for those seeking to protect our human rights, it offers no long-term reassurance, not least since as Home Secretary, Theresa May supported withdrawing from the ECHR altogether.

The proposals to crack down on claims against the armed forces are of particular concern; there are already procedures designed to deal with truly vexatious litigants but to crack down instead on firms who pursue such claims (particularly when, whatever individual solicitors are alleged to have done, gross human rights abuses have been shown to have occurred) by restricting their legal aid is a very significant erosion of justice.

Equally concerning, although not surprising, is the lack of proposals dealing with improving access to justice or properly reviewing the way in which this has been eroded through a raft of recent Conservative-led measures.

The Liberal Democrats

“Change Britain’s future”

The Liberal Democrats manifesto was launched on 17 May. The party has sought to sell themselves as an alternative, more effective opposition, especially on issues surrounding Brexit. Uniquely, they plan to appeal to those who are against Brexit by pledging to offer Britain a second EU referendum.

The main points of interest from a human rights and access to justice perspective are as follows:

• To maintain membership of ECHR and oppose any watering down of the Human Rights Act 1998;
• To strengthen the UK’s commitment to international human rights law;
• To conduct an urgent and comprehensive review of the effects of the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012 on access to justice;
• To review the investigation, prosecution, procedures and rules of evidence in cases of sexual and domestic violence;
• To reverse the massive increases in court and tribunal fees;
• To continue to modernise and simplify court procedures; and
• To extend requirements on companies to strengthen responsibility for supply chains, focus on good practice in tackling modern slavery, and implement the Ewins report recommendations on domestic workers.

The Liberal Democrats offer a totally different position on Brexit to Labour and the Conservatives, proposing a second EU referendum which they have pitched on the basis that voters deserve a chance to remain in the EU if the “final deal” is unsatisfactory.

It is welcome that not only do the Liberal Democrats commit to maintaining and upholding substantive Human Rights and the Human Rights Act 1998, but the manifesto also suggests a proper appreciation of the urgency with which funding needs to be reviewed and access to justice restored. Likewise, the Liberal Democrats alone appear to appreciate the disastrous impact of the gross increase to court fees, and the need for immediate steps to be taken to reverse this.

Conclusion

Whilst protection of human rights and access to justice have taken somewhat of a back seat in this election, in comparison with 2015 when we saw abolishing the Human Rights Act as a key pledge in the Conservative manifesto, there is still a clear dividing line between Conservative proposals that seek to delay reform until post-Brexit and Labour and the Liberal Democrats, which both include policies that are firmly supportive of the Act as well as measures to bolster access to justice.

Whatever the outcome of the election there will be considerable battles to fight to protect and rebuild access to justice that has been so eroded in recent years as a result of government reforms and austerity.

For many voters, protection of human rights and an ability to access legal redress are unlikely to be their primary concerns, with the future of the NHS, education cuts, tax, the economy and Brexit taking centre stage.

When casting your vote, however, it is worth considering the importance of these fundamental rights both to you and to society as a whole.

You can read more about each parties’ manifestos on their individual websites. Once you’re totally up to date on everything, make sure you vote!