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One source available to us is Lord Bingham who has been recognised as one of our greatest judges in modern times. The late Lord Bingham had plenty of credentials, not only as a commentator in his speeches and writings upon the rule of law, but also as a former Master of the Rolls, Lord Chief Justice and a senior law Lord when he gave a number of leading judgments. As the writer of his book 'The Rule of Law', Lord Bingham identified one of the essential ingredients of the rule of law as being that the law must be clear and accessible.
One of the consequences of everyone being bound by the law is that 'ignorance of the law is no excuse' and we are all subject to the law. It was the late Lord Toulson in R v Chambers (2008) who was horrified to find that neither he nor the lawyers dealing with an appeal before the Court of Appeal knew that some regulations had been repealed and the law had changed some years before. Lord Toulson was so incensed about the situation that he said in his judgment 'This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible.' The appeal was against a confiscation order made under regulations made in 1992. The appeal was not allowed but the discovery of the change in the law only came about in the words of Lord Toulson by 'a fortunate accident' when a draft judgement had been circulated before the handing down of the judgement. Lord Toulson did not leave the matter there as he considered the Court of Appeal had been misled and asked for an inquiry to be launched.
The incident begs the question that if legal professionals can make mistakes about the current law because of its inaccessibility and sheer volume then what hope is there for members of the public that they can be confident about finding the law, let alone understanding it.
It follows that if everyone is bound by the law it is only fair that they should be able to find out what the law is on any given subject without too much trouble. It is a moot point whether one should have to seek advice from a legal adviser. The problems begin if the law appears to be uncertain and therefore not clear and inaccessible. If this is the case then it is difficult to know what action and safeguards may need to be put in place. This can apply to businesses as well as individuals. It could even apply to law enforcement agencies and public service providers.
As law students we all learn that the crucial part of any legal judgment is the ratio of the decision. The ratio is the legal reasoning behind the judges' decision and is binding on the court if it was made by a court higher in the hierarchy. It is the basis upon which our common law system works, and relies upon a sound case reporting system and skilled legal professionals. However, it is not always a straightforward matter to extract the ratio from the remainder of the judgment especially where there are judgments which partially support the majority as well as dissenting judgments.
In addition the senior courts encourage multiple decisions at times and whilst these may lead to a better understanding of the legal arguments and the weight attached to them they bring their own problem of trying to determine exactly where another judge departs from their support for the leading judgment. Lady Hale as President of the Supreme court has made her views known regarding this. A judge may give a dissenting judgment but that does not mean it should be ignored completely. How are members of the public expected to manage complex legal arguments and multiple judgements?
There are some parts of the law which are particularly challenging both to the judiciary as well as legal advisers. One could argue that for members of the judiciary such problems go with the job. As for legal advisers, part of their job is to advise on the law and on courses of action that a client may need to take in light of the law and this aspect is made that much more difficult if there is any doubt about the law. One area of the law that could fall into this category is the law of negligence including how a duty of care is established. The law in this area has developed incrementally over the years and various legal tests have come and gone during this time since the finding of Lord Atkins 'neighbour rule' in Donoghue v Stevenson (1932). The case itself concerned the presence of a decomposed snail in a bottle of ginger beer which the complainant drank. Judges try to anticipate all situations in which the law will support a claimant, hence legal rulings can appear to be wide and all embracing. It is by analogy that the courts are able to apply the legal principles to subsequent situations. The tests and consequentially the law grows and develops on a piecemeal basis as can be seen in such cases as Anns v Merton London Borough Council (1977), Murphy v Brentwood DC (1990) and Caparo Industries v Dickman (1990) with its three part test for novel situations. Lord Bingham recognised that some judges have to take responsibility for creating some of the legal uncertainties in the law with lengthy and complex judgements but warned against excessive innovation.
Statute law can bring its own problems as well in the context of law which is clear and accessible. Modern statute law can be problematic in that parliamentary draftmanship can lead to very technical language which attempts to be very comprehensive in its approach with the result that it is largely inaccessible except to legal professionals and even then we have seen that mistakes can be made (R v Chambers (2008)). We are helped at times with the modern approach of providing explanatory notes, where there has been a push away from 'legalese' to the use of 'plain English', with some new legislation though such notes are not binding in themselves. We are also helped by the improvement of on-line legislation facilities. The law is not always in one place more than one statute or statutory instrument may have to be read together to find the complete picture.
Many statutory instruments (some 3,000 a year) are issued and many deal with the implementation of enabling Acts and the introduction or change in rules and regulations. These can cover specialist areas of the law such as taxation, housing benefit and other welfare benefits all of which can be technical and complex. Many rules and regulations might be regarded as inaccessible except to skilled professionals. This may raise the question of whether the law is too difficult for many to find out and understand what it means unless they take advice from their lawyer or one of the other sources of legal advice such as the Citizen's Advice Bureau. It may also mean that in many cases the law can only be made accessible through the issuing of booklets and leaflets explaining the law and any changes to rights. The cut backs in legal aid are well documented and this may mean that assistance will no longer be available for help with costs in some of the areas where it was previously available.
In 2014 Andrew Caplan, President of the Law Society at the time, helped launch a campaign 'Access to justice' with the Lord Chief Justice. As part of that campaign, Andrew Caplan, when referring to the rule of law, spoke of inter alia 'laws should be accessible, clear, precise and open to public scrutiny '…. 'and courts must be accessible, affordable and cases should be heard without excessive delay' and then went on to remind us that 'In brief, the rule of law limits the power of the state and guarantees us our rights, as well as the means to seek redress if such rights are infringed.'
In real and practical terms as well as human suffering much has been said about the need to tackle domestic abuse but what of the prospect of accessibility to the courts. Few would disagree that legal assistance should be available to those at risk of physical violence and abuse but, whilst legal aid may in theory be available, Andrew Caplan pointed out that in his opinion the threshold for actually applying and obtaining legal aid was set far too high. Affordability raises the issue of access to the courts and if you cannot gain access to the legal system and any protection it affords what is the point of the courts?
It is also arguable that limitations and restrictions around legal assistance may create inequality before the law and that in turn may give rise to concerns about justice being denied. Much has been said and written about the huge increase in the number of cases where the parties represent themselves and the problems that this may bring.
In this regard, the work of the Equality and Human Rights Commission does demonstrate that legislation as enacted can fail to support human rights when it supported an application to the Supreme Court in R (on the application of Unison) v Lord Chancellor (2017). It was found that fees for those bringing Employment Tribunal claims were unlawful. The Supreme Court ruled that the decision by the Ministry of Justice to introduce fees was judged unlawful under both domestic and European law because it prevents access to justice, saying that 'The right to justice must be based on the merit of your case not your ability to pay.'
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