It's always darkest just before it goes pitch black: my thoughts on 2011 and 2012 (part 2)

Well here we are, 2012 is up and, while not quite running yet, gingerly poking its feet out from under the duvet. It’s fair enough to be a bit cautious about rushing headlong into January if the last year is anything to go by. The first full year of the coalition government has been something of a rollercoaster, whichever side of the political divide you sit and whatever your area of concern. Looking at it from a legal perspective, it’s hard not to conclude that we are heading for a derailment in 2012 as we rush headlong, and blindly, down the tracks of reform.

It's fairly obvious that the next twelve months will see the gap between the rich and poor getting wider.   As the economy stagnates, or even goes backwards, and more people lose their jobs, it is only logical that the top 1% will leap further ahead of the 99%.  The super-rich and the corporations they run will still manage to avoid paying taxes while the rest of us struggle to meet escalating fuel bills and rising food prices.

If the government was minded, it could do something.  It could, for example,  make it a priority to clamp down on  tax dodgers and reclaim some of the at least £70bn forecast to be lost to the national coffers in 2012.  That’s big money, and even if the tax officials who seem to like letting big business off the hook only managed to collect a fraction of it, they could save legal aid.  The government’s legal reform bill, LASPO, aims to cut £350m from the £2.1bn legal aid budget – that’s less than 1% of the £70bn.  But this isn’t where the government’s priorities are, so, barring a miracle, 2012 could see the de facto end of legal aid.

I am not an expert in constitutional or in human rights law, but it does seem to me that access to justice is a fundamental principle of our society.  Without it, there is no point individuals having any rights as they won’t be able to enforce them.  Without it there is no equality before the law, because the rich (and the state) can buy their way out of trouble or pay to see off troublesome litigants.  If the government has its way, and LASPO is passed then justice may well be a thing of the past for many of the poorest and most disadvantaged and even 'the squeezed middle'.

It shouldn’t really come as much of a surprise that the government seems to have little respect for something as important as access to justice, when 2011 was the year in which a succession of ministers took the opportunity to call for the Human Rights Act (HRA) to be scrapped.

Home Secretary Theresa May has quite openly called for it to go because it hampers efforts 'to deport dangerous foreign criminals and terrorist suspects'.  She famously suggested its provisions prevented deportation of an ‘illegal immigrant’ because he owned a cat.  ‘Catgate’ has been widely debunked but the fact remains, the Conservative part of the coalition would very much like to ‘stick it [the act] in the dustbin’, in the words of Chris Heaton-Harris MP.

In my favourite hyperbole of the year, the prime minister declared that the prospect of prisoners voting makes him ‘physically sick’.  Funny that far bleaker prospects, such as denying thousands access to their rights by cutting legal aid, don't engender a similar response.  But I suppose it sums up how David Cameron feels about being told what to do by judges in Strasbourg.  In fact, it’s probably that the caused the onset of nausea.

2011 was also the year in which our rights, or otherwise, to privacy came to the fore.  In spring, social media had much fun with the granting and subsequent unmasking of super-injunctions.  The furore they created was only a warm up act for the phone hacking scandal and the Leveson inquiry into the culture, practice and ethics of the press, during which former News of the World reporter Paul McMullan stated that ‘privacy is for paedos.  No one else needs it’.

While there is no free standing ‘right to privacy’ in the UK, the HRA does provide that ‘everyone has the right to respect for his private and family life, his home and his correspondence’.  Which is, basically, a right to privacy.  Judges balance this against another provision in the HRA, the right to freedom of expression.

David Cameron has expressed his ‘unease’ at the rise of measures like the super-injunction, a ‘sort of privacy law without parliament saying so’.  If he could be bothered, he would find that parliament did actually say so, when it passed the HRA in 1998.  He might think the judges sometimes get it wrong, but they are not creating a law of privacy.  It just gives him another stick to beat it with.

Will the HRA survive 2012?  It will probably depend on whether the Liberal Democrats, so far so willing to lay down and act as doormats to a host of Tory proposals to attack the welfare state, develop a backbone and stand their ground.  Nick Clegg has vowed the act is here to stay, the next twelve months may demonstrate whether it, or staying in power, is more important to him.

Depending on who you listen to, the 2011 riots were either about looting a new pair of trainers and a flat screen tv, or expressing frustration at lack of opportunity and alienation from the rest of society.  Whichever view you take, I wouldn’t assume it won’t happen again.  If it does, court closures will put even more strain on the justice system than the round-the-clock sittings did this summer.  Add to that the threat in LASPO of means testing the free advice suspects get in the police station and you have a recipe for disaster.  We can only hope people are too busy trying to make ends meet to riot.

2011 wasn’t all bad.  Some amazing stuff happened overseas:  in Burma, Aung San Suu Kyi was released from house arrest and despots across the Middle East were removed from power as the Arab Spring swept across the region.  It would be truly wonderful if this trend continued.  Here at home we had the royal wedding, and apparently England did quite well at cricket.  I hope there is more than this to cheer in 2012, but the way things are shaping up, I don’t hold out much hope.



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