This is a really interesting development. The legal aid system in the UK has been falling apart for years and as of this week lawyers are actually on strike. The theory was that without proper legal representation it would be impossible to try people, since you would be taking away their right to legal representation, but it seems that some judges are just pushing ahead. I would be shocked if this doesn't cause a series of appeals that eventually affirm that defendants have the right to legal representation and can't be tried until a lawyer is found. Even before this strike the courts have been falling apart and trials have been delayed by months and years.
It's pretty shocking how badly the government have fucked up not only this, but basically every policy area now.
The problem with the UK is that you have no rights except for what Parliament gives you. When Parliament passed a law requiring people to pay themselves or do without, anyone covered (90% of people) lost their right to representation. You cannot appeal that because courts are bound to follow only the will of Parliament. There is no higher authority (no constitution, no human rights convention etc) to appeal based on...
That is the opposite of the the truth. In fact, you have every right but those Parliament and the common law take away from you. This has been a long-standing principle of English jurisprudence.
Will be interesting to see if the newish UK Supreme Court will attempt a US style supremacy power grab ala Marbury v Madison and subsequent cases.
There was no explicit right to appeal constitutional rights in the US wrt to laws being unconstitutional until SCOTUS declared one.
Since House of Lords handled the appeals role historically, it seems like much of the case law would be based on the assumption of legal appeals being reviewed by a sovereign entity, ie, parliament.
However, the US constitution explicitly states it is the supreme law and limits what congress and the states may pass unless they follow an amendment process.
The UK has no constitution for a Supreme Court to claim trumps parliament’s laws.
(That said, I understand that the Israeli high court has claimed the ability to overturn parliamentary laws despite Israel not having a constitution either, so perhaps there is a chance a UK court tries the same?)
Parliament could remove the Supreme Court just as it created it. The “supreme” in Supreme Court is inaccurate. In theory at least, Parliament is supreme. Although getting rid of the Supreme Court might be politically awkward.
I wouldn't say "supreme" is inaccurate, since the Supreme Court is superior to every other court.
(That's if we accept that Parliament is no longer a court after the Supreme Court assumed its judicial responsibilities. Also, I'm likely wrong because everything one thinks one knows about the UK constitution is always wrong, but feel free to tell me how so.)
> everything one thinks one knows about the UK constitution is always wrong
Ha, this cracked me up, and got me thinking whether it's possible that the UK developed legal bitrot because it hasn't had a good revolution in a while. so it's in a sense.
Fucked up I implies incompetence, this is an incompetent leadership yes, but also one happy to attack all the institutions of government and democracy, courts included.
Given you have to be a solicitor or barrister to even have the "Right of Audience" in certain courts, it would seem this violates the rules for RoA prima facie.
Note that as an America these UK rules make no sense to me (especially the solicitor/barrister thing - talk about assuring justice can't be served without money or power).
Sorry to get political, but the way the conservatives have defunded legal services they cannot claim to be the party of law and order anymore. Perhaps the party of punishment.
what does this mean? doesn't the UK have public defenders who are appointed by court if the defender cannot afford legal help by his own means or the accused has declared himself a pauper?
what about amicus curie?
edit:. Because of ongoing industrial action, there are no other barristers to take on her case.
i did read the article. i am saying doesn't UK have public defenders who are employed by the government to provide free legal help to poor defenders? if these people exist then whats the point of not picking up a case when there is no problem of funds ?
"She was unhappy with her barrister and was told he would not be able to continue representing her after she expressed her dissatisfaction.
However, due to industrial action, no other barrister can accept the case. With no replacement found, Judge Peter Rook QC has told Anderson, 40, that she must represent herself."
They're on strike. They will still represent clients but they will not pick up clients of another barrister, presumably because the original barrister will get no or less pay if that happens.
>presumably because the original barrister will get no or less pay if that happens.
in india, legal help is FREE if the lawyer is appointed by the court in cases i mentioned so there is no question of getting paid less or more. they are on a government salary so how does it matter?
They are not on government salary. In UK, these are private lawyers who contract some hours of their services to private individuals, companies and also the government, and at this time they are choosing to serve only their private customers as the government does not offer a competitive rate.
They are going on strike, demanding that the government salary be higher. If they continued to represent clients, they would be breaking the strike, so their "negotiations" would fail.
Not in the same way as the U.S. In the UK, barristers are usually self-employed. We have a system called Legal Aid which pays barrister's fees if a defendant cannot. But barristers are on strike at the moment because they don't believe Legal Aid fees are sufficient.
(Barristers are the subset of lawyers who represent people in court. The difference between barristers and soliciters is explained here:
>doesn't the UK have public defenders who are appointed by court if the defender cannot afford legal help
She wasn't happy with her barrister (her public defender in this case), so he quit. Because of ongoing industrial action, there are no other barristers to take on her case.
I think why @2GKashmiri feels dismayed is that in India (disclaimer: no pun/sarcasm intended to his Kashmiri status), someone who is incapable of legally representing himself still has a court appointed lawyer by all means. And the role of amicus curiae is to either represent that person or negotiate a replacement. How do I know this? My brother was a junior lawyer to Adv. Ramchandran, the amicus for Ajmal Kasab, the perpetrator of 26-11-2008 Mumbai terrorist attack which left 175 dead & more than 300 injured or maimed [1]. No lawyer took him up, out of patriotic feelings, disgust or fear of retaliation - yet it was court's responsibility to negotiate legal representation.
Did he feel awful? Absolutely. He felt conflicted preparing defense for Mr. Kasab's counsel. He hated that man & his actions, and we have had many late night rants on what a monster he was. Did he consider quitting? No, because in matters of principle leaving legal defense is as good as giving him to a kangaroo court. His penalty was obvious - but it does not mean every lawyer should abandon him.
Its actually bizarre that industrial action has left this woman without choice. Usually in the legal creed, many lawyers & barristers take these cases pro bono when such situations come out in open. Nothing Hippocratic philosophically, but public prosecutors unwilling to represent in court machinery is generally frowned upon in legal principles.
> because in matters of principle leaving legal defense is as good as giving him to a kangaroo court. His penalty was obvious
Actually it's very different from a kangaroo court. The defense lawyer is there to make sure that the trial follows due process. Only those elements that should be taken into account are, for example, and only in an appropriate way. This is what is at stake in the particular case mentioned in the article: it is likely that the defendant doesn't know the procedures and therefore there is a real possibility that an unlawful decision is taken.
And of course someone had to be there to check if there are circumstances favourable to the accused, and make them available to the court. Even if the man is a despicable criminal, the court can only reach a fair decision if they go beyond the public image of the terrorist.
>>Barristers have been operating a ‘no returns’ policy since April in protest at their pay and conditions. This means that they are refusing to pick up cases if other barristers are unable to represent a client – for example, if another case has overrun.
>>On Monday, barristers are due to start wholesale strike action over funding concerns. Four in five criminal barristers voted for the walkout.
The ability of public sector unions to hold the government and society at large hostage with strike action like this is why public sector compensation has grown so much over the last 60 years. In the US, federal government and private sector compensation were comparable in 1950. Today there is a massive gap between the two.
In the 1950s, very few public sector workers had the privilege to force their employer, i.e. the government, into collective bargaining, while today, most do.
That isn't what is happening here. Criminal barristers are not employed by the government for defence and the Criminal Bar Association is not a public sector union. For legal-aid defence, they are mostly self-employed and have the freedom to pick up cases as they choose.
The barristers in this case are stating that legal-aid cases (i.e. acting as a public defender) don't pay enough so are refusing to take the jobs. Much as how you could choose to not take a consulting job in your own profession, if you pleased.
Interesting, but what is the relevance of a mid, last century American president's thoughts on unions to the UK of now with a pretty different political structure and beliefs around collective bargaining?
I kind of agree with your assessment, but here's what I know about the UK situation:
Public sector workers in the UK have fought hard for good pay and conditions, but many face worsening conditions and pay today.
In the past 60 years, many formerly public sector industries and sectors have been slowly privatised, such as rail, mail, and telecom, to name the largest examples. These workers have taken real-terms pay cuts during working as "essential workers" during the pandemic, only to face "fire-and-rehire" tactics from employers as we get back to normal -- employers terminating their contracts and then hiring for the same role months later, only with worse conditions and pay.
Those workers who have remained in the public sector also face terrible pay and conditions. Over the past 40 years the public sector has had its funding gradually stripped away, to the extent that teachers, nurses, as well as local government workers have far higher caseloads than ever before.
In the specific instance of these barristers, many are totally overworked, as legal aid -- the funding for public defence barristers -- is once again being cut. Many barristers are surviving on a shoestring, being paid effectively far below minimum wage, all due to their selfless choice to give the right to a fair trial to those too poor to afford their own lawyer. Stories like these are so depressing because the barristers -- many extremely dedicated and highly qualified professionals -- have been left no choice but to protect their ability to feed themselves and keep a roof over their heads.
Furthermore, collective bargaining is not a "privilege" in the UK, it is a right enshrined by law here -- and all workers have this right, wherever they choose to form a union branch. But what has changed in the past 60 years is laws limiting worker's ability to strike. Things like secondary picketing, mass picketing and the like -- tactics where smaller groups of workers can band together and support each other -- means that whilst it's somewhat true that larger public sector unions are more powerful by comparison these days, 60 years ago all unions in all sectors were MORE powerful. This was brought in by several successive governments in the 70s and 80s, but they haven't entirely succeeded in legislating out one of the most fundamental rights that British workers have. Union density stands lower than it ever has, but we're seeing the return of industrial action due to the terrible conditions that many of these workers have.
It's interesting because a lot of the old trade union acts were in response to a similar situation in the 70s and 80s -- public sector workers faced stagnating wages and high inflation. But even when the laws have changed, the workers generally respond only when their livelihood is threatened. It's why I think the analogy of "holding the country to ransom" is wrong, because the shoe is very much on the other foot for these workers, as it was back then -- a few days of inconvenience (or even some rare legal judgements) are nothing compared to what these workers face collectively at the hand of unscrupulous employers and a chaotic economy.
It's pretty shocking how badly the government have fucked up not only this, but basically every policy area now.