Cuts to Legal Aid and Access to Justice: The View from Family Courts

Image via Shutterstock

By Dr. Konstantinos Kalliris, School of Law, University of Essex

Legal aid, as we know it today, is a relatively recent institutional development, but the concept is old. From the Court of Requests in Tudor and early Stuart times to the pro bono advice offered by the Poor Man’s Lawyers Movement, the idea that everyone is entitled to some form of legal advice and support has been present in the United Kingdom for a long time.

However, legal aid as charity did little to help those unable to pay for legal counsel (it was, after all, mostly restricted to pre-trial advice) or to level the legal playing field, as the courts continued to be part of the modus vivendi of the aristocracy. Due to strong opposition to the idea that everyone should be entitled to legal aid (mainly for fear of encouraging people to be litigious), some of the first formal policies were, perhaps inevitably, heavily moralized. For example, the Poor Prisoners Defence Act 1903 included provisions for legal aid for prisoners who had a defence.

The end of World War II led to the foundation of legal aid roughly as we know it today. Since then, several reforms have attempted to manage both the volume and the cost of legal aid, with the post-1986 cuts being the first concentrated effort to reduce the budget. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced further cuts, which heavily affected several areas of litigation and excluded most private family law cases from the scope of legal aid.

LASPO and the Right to Legal Aid

LASPO’s explicit goal was to save money and family law was one of its main targets. While public law proceedings and the representation of children generally remained in scope, private family law was the reform’s main ‘victim’. Most private family law cases, including procedures as common and stressful as divorce and child contact, became ineligible for legal aid. Cases involving children or finance remain in scope only where there are issues concerning domestic violence or child abuse and specific evidence is provided (the evidence-related requirements relaxed in 2018). The Ministry of Justice expected that this new policy would also discourage litigation on private family problems, which could be resolved out of court. Apparently, the idea that people become unreasonably or excessively litigious if legal support is readily available still survives.

One possible concern with this blanket approach is that the exclusion of entire areas of law seems arbitrary and irreconcilable with the very raison d’ être of legal aid. Even where alternative means of dispute resolution (such as mediation) are available, some of these cases may inevitably end up in court. Furthermore, mediation itself requires legal support and, as we will see, there is evidence that people need to be advised by a lawyer that it is an available option. The problem, therefore, with the removal of almost the entire area of private family law from civil legal aid is that this policy choice may restrict access to justice for many people, without consideration for their needs and circumstances.

The idea that access to civil legal aid is inherently linked with effective access to justice is part of the European legal tradition. Article 47 of the European Charter of Fundamental Rights 2000 illustrates the point: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ However, there is no universal or unconditional right to legal aid, especially with regard to civil law cases. While efficient access to justice remains important for the European Court of Human Rights (‘the Court’), it has been ruled that Article 6 § 1 does not imply that the State must provide free legal aid for every dispute relating to a ‘civil right’ (Airey v. Ireland, § 26). The crucial question is whether the lack of legal aid would deprive the applicant of a fair hearing and the answer depends on the specific circumstances of the case (Airey v. Ireland, § 26; Steel and Morris v. the United Kingdom, § 61; McVicar v. the United Kingdom, § 48).

The Court has identified a set of criteria for assessing the states’ obligation to make legal aid available in non-criminal proceedings. These are: the importance of what is at stake for the applicant (Steel and Morris v. the United Kingdom, § 61; P., C. and S. v. the United Kingdom, § 100); the complexity of the relevant law or procedure (Airey v. Ireland, § 24); the applicant’s capacity to represent him/herself effectively (McVicar v. the United Kingdom, §§ 48-62; Steel and Morris v. the United Kingdom, § 61); and the existence of a statutory requirement to have legal representation (Airey v. Ireland, § 26; Gnahoré v. France, § 41). Two further criteria have emerged in the Court’s case law regarding the conditions attached to legal aid: the financial situation of the litigant; and the prospects of success in the proceedings (Steel and Morris v. the United Kingdom, § 62).

LASPO and Access to Justice: the Project’s Findings

The question that naturally emerges from these general remarks is whether LASPO was successful in saving money without ignoring the above criteria and restricting access to justice for many people who require legal aid to effectively exercise this right. In a research project funded by the British Academy, Theodoros Alysandratos, Mariol Jonuzaj and I looked at the effect of LASPO on family law cases, hoping to shed some light on these issues.

First, we find that legal aid funding started to drop in the first financial quarter of 2014 and kept on falling for the next two years. At the end of this period, funding had dropped by 35% relative to the amount approved before the fall started.

Legal Aid by Financial Year and Financial Quarter. The image illustrates the percentage change on a year-to-year basis (from the project’s findings)

Then, we observe that the number of funded cases started to drop in the first financial quarter of 2012 and continued for 3 years. At the end of this period about 60-65% fewer cases were being funded. The discrepancy in the timing of the effects between funding and funded cases can likely be attributed to the disbursement of commitments prior to LASPO coming into effect.

Volume by Financial Year and Financial Quarter. The image illustrates the percentage change on a year-to-year basis (from the project’s findings)

In terms of saving money, the case of private family law reveals that the LASPO had an immediate effect. Whether this effect was sustained in the years that followed remains to be seen. The same applies to the number of cases that received legal aid, since it also dropped significantly in the years immediately following LASPO. This means that, at least for a certain period of time, a considerable number of people was denied access to legal aid for private family law cases (with the exceptions noted in the introductory paragraph), regardless of their financial situation and/or ability to secure some kind of legal advice, let alone representation.

Did this lead to an increase in the number of cases going to mediation or the number of Mediation Information and Assessment Meetings (MIAMs)? According to the post-legislative memorandum released by the Ministry of Justice in 2017, this was certainly not the case, presumably because it is only after receiving legal advice that most people see mediation as an option. In fact, before LASPO came into force, 4 out of 5 cases that ended up in MIAMs were referrals from legally aided solicitors. To make things worse, the Legal Aid Agency reported in 2017 that only 61% of completed mediations were successful (slightly down from the 68% reported for 2013-2014).

This evidence suggests that, as far as legal aid is concerned, many people in England and Wales are experiencing a return to a pre-World War II world. Their chances of securing free legal advice and representation are very slim, as their only avenue is to contact organisations with already limited resources, such as Citizens Advice and Family First. University Law Clinics also shoulder some of the burden, but they cannot offer legal representation. In a sense, civil legal aid is to an extent seen, once again after almost a century, as a form of charity.

However, as lawyers realised at the time, charity is not enough to ensure effective access to justice for all. As one of the founders of the Poor Man’s Lawyers Movement observed more than 120 years ago, extensive lack of free access to legal advice and representation for those who most need them makes the rule of law ‘an anaemic attenuated make-believe which we flash in the eyes of the poor as justice’.

Investigations in Armed Conflict

Image by Shutterstock

Investigations into alleged violations of international humanitarian law and international human rights law in armed conflict are crucial to the implementation of these bodies of law.

There are, however, numerous legal and practical challenges that arise when considering a State’s obligations under international law with regard to such investigations.

These include establishing the bases and scope of the duty to investigate under both bodies of law, and determining the way in which these investigations must be carried out.

Furthermore, addressing the framework for investigations in armed conflict necessarily requires an examination of the interplay of international humanitarian law and international human rights law.

In her new chapter in the latest edition of the Research Handbook on Human Rights and Humanitarian Law, Dr. Claire Simmons, a researcher at the Essex Armed Conflict and Crisis Hub (under Essex’s Human Rights Centre), focuses on the concept of effectiveness of investigations under international law.

Dr. Simmons addresses, in particular, the legal and practical challenges surrounding the conduct of investigations in armed conflict, taking into account the complementary way in which both bodies of law interact.

Research Handbook on Human Rights and Humanitarian Law, edited by Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda

Chapter full citation: Claire Simmons, ‘Investigations in Armed Conflict’, in Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (Elgar 2022).

Why the UK Government’s Plan to Overturn Court Decisions is a Bad Idea

Photo by Jordhan Madec

By Maurice Sunkin, Theodore Konstadinides and Lee Marsons, School of Law, University of Essex

The UK government is pursuing multiple legal reforms designed to rebalance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto. Many of these reforms will affect how people can hold the state accountable, potentially undermining independent scrutiny and weakening the role of the courts in holding the government to account.

Among them is a review of the 1998 Human Rights Act – the law that allows people to enforce certain human rights in British courts – and proposed changes to judicial review – a process by which people can ensure that the government obeys the law.

We were given a further insight into the government’s thinking about how it might continue to “rebalance” its relationship with the judges, with details of the proposals emerging in the press. This includes a possible “interpretation bill”, which would be a yearly act of parliament by which the government would ask MPs to overturn court decisions that the government does not like.

Alongside a growing number of voices, we argue that this is a bad idea. Even if this specific policy is not adopted, these arguments are relevant to any proposal that makes overturning court decisions routine.

Problems with the government proposals

Principally, it is difficult to see what problem this is trying to solve. Parliament is sovereign and can already overturn any court decision, from a small claims case all the way to the UK Supreme Court. This proposal, then, will give parliament zero additional powers beyond those which it already has. At most, it would give parliamentarians a regular block of time to legislate about cases the government dislikes. But it is questionable whether such a regular event is necessary and it could descend into a farcical pantomime of “find judgments to disagree with to justify this exercise”, rather than a serious focus on judgments that raise genuine, principled or pragmatic concerns.

Also, while parliament can already overturn cases, doing so is by no means routine. This proposal would make the irregular regular. It would make the non-routine routine. It would remove the political heat from overturning judicial decisions. Given that the idea is apparently rooted in government frustration with losing important judicial reviews, the proposal would mark a significant indicator of the diminishing status of the rule of law in British democracy.

There are also several important pragmatic concerns. If a carefully reasoned decision of a senior court is to be overturned, this should only be after parliament has fully considered the case and its real-world implications, especially for MPs’ constituents. MPs will need to examine how overturning this case could, for example, make it more difficult for them to challenge an unlawful benefit sanction, a discriminatory stop and search or incorrect decisions about a child with special educational needs. These matters deserve careful attention. It is difficult to see how parliament could perform this assessment on multiple cases at once as part of a general annual exercise.

Parliament should also make a careful assessment of whether, for example, the problem is the whole judgment and all its consequences or only part of the judgment and only the consequences in a few instances at this particular time. On thoughtful reflection, reversing the whole judgment forever could be disproportionate.

Being more reflective about individual cases allows time for consultations, so that the government can consider the views of experts in that area of law, and more importantly, people disadvantaged by overturning the decision. This should include impact assessments to consider the consequences for less powerful, underrepresented groups like the disabled, women and racial and religious minorities.

The consequences of overturning the case for the broader constitutional system must also be examined. Would it, for example, promote or undermine government accountability, fair procedures and government obedience to the law?

It is not good law-making to overturn important judgments as part of a generic package when the consequences for ordinary people could be so great.

Retrospective decisions

Further serious problems would arise if the interpretation bill consistently operated retrospectively. This is when the new interpretation would apply not just to future cases but to all past cases as well. People and public bodies plan their budgets, allocate their resources and make their decisions based on the law as it stands. Abolishing the previous understanding of the law all at once could generate legal uncertainty, undermine confidence in the law and damage people’s expectations about what they were entitled to.

Worse, claimants may not even bother to bring some cases for fear that victories would simply be overturned retrospectively. There would be no reason to waste the time, resources and effort. Government accountability could be undermined if people were dissuaded from bringing cases on this basis. Even the apparent support for these proposals at senior ministerial levels may send a message and create a chilling effect. Again, this is legal. But it is not the right course of action. Convenience for the government is not the same thing as the public interest.

At best, the proposal to allow parliament to routinely overturn judicial decisions would be poor legislative practice unconducive to thoughtful law-making. At worst, it would be a significant nudge of the constitution in the government’s favour and away from independent judicial scrutiny. It could threaten government accountability and the rule of law and damage the status of the UK as a model of liberal democracy.


This article was first published on The Conversation and is reproduced here under a Creative Commons Licence.

Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria

Photo by David Rotimi

Dr. Fikayo Taiwo, Lecturer in Law at the University of Essex, has concluded her Ph.D. thesis titled ‘Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria’.

The problem the thesis sought to investigate is the continued exportation of Africa-related disputes for arbitration outside of the continent based on a perceived lack of an appropriately attractive seat of international arbitration within the region.

Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.

To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).

In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.

Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.

One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.

The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.

The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.

Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.

The Rule of Law: Driving Water and Climate Inequality?

By Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

The rule of law broadly underlies the idea that ‘no one is above the law’ and that the law is created and applied fairly. The dominant liberal-legal narratives on the rule of law often do not go much beyond this. That is, they do not ascribe content about ‘what that law should be’. Rarely does this narrow ‘rule of law’ speak to any right to have law made to protect the planet and realise the needs of marginalised and deprived peoples. As Baxi puts it, there is no theory of ‘the good’ in the rule of law. There are only minimal procedural ideas that inform the dominant narratives on the rule of law.

The narrow conception of ‘the rule of law’ serves particular ideological ends. The last three decades have shown that the rule of law has been a handmaiden of economic growth and capitalism. Growth that has brought about ecological disorder at a planetary scale. For instance, the rule of law has been used as an ideological concept by international development banks – such as the World Bank and the Asian Development Bank – to pursue legal, policy and technical reforms in the Global South. Such use has transformed the reason for the law, as Krever argues, to promote the mantras of economic efficiency and entrepreneurial activity.  

Water and Climate inequality in Jaipur, India

The rule of law and its relationship with climate change can be illustrated by looking at the Global South’s water and climate conflicts. The city of Jaipur in India is a growing city in the northwestern state of Rajasthan. Like many cities in the Global South, its economy has been urbanising and growing, driven by national and international policies.

However, the urbanisation in Jaipur operates in the context of water and climate stress. In India today, 600 million people face extreme water stress, and about 200,000 die every year due to inadequate access to safe water. Climate change is intrinsically woven into this water crisis, with 44 per cent of the country under various degrees of drought in 2019, increasing the intensity of floods, cyclones and grave climate impacts. Last year, massive farmer protests, which gained worldwide attention, were partly driven by the growing water crisis in rural areas.

The ability of Jaipur to grow in deeply unequal ways has been dependent on taking water from rural communities. This has created further climate vulnerability. A key water source for Jaipur is a reservoir outside the city, connected via a pipeline. The pipeline was built in the 2000s, funded by loans from international development banks. As part of the loan conditions, there were reforms, and state utilities were corporatised. Water utilities were to be reformed to operate under market logic, driven by profit and cost-recovery, rather than treating water as a public good that served a broader social and ecological purpose.

The reforms requested by international development banks transformed how water was used and distributed. The state was now incentivised to take water and re-direct to where it earned the most money. This was for city dwellers and industrial users who paid higher tariffs for water and are more likely to pay for greater use. Poorer rural and urban communities, less financially worthy, lose out. Law and policy were central in this reform and transformation.

Law also played a role in ensuring enough water was available for the city. In earlier years, communities living around the river that now supplied water into the pipeline built small earthen dams to capture water for their use and livelihoods. The judiciary consistently upheld a government ban on these dams. This was because of a perceived threat to the sustainability of the river that was now feeding the city.

Meanwhile, groundwater, a significant water source for many, is critically overexploited in the region. Colonial groundwater laws in India have notoriously allowed landowners the right to exploit as much as they wish. While the state can restrict future exploitation in overexploited blocs, it cannot stop existing users. Participatory governance, so often tied up in neoliberal and the rule of law rhetoric, has also failed to shift power structures that depend on who owns land, has water rights, and thus wealth. The rule of law stays silent on these broader questions.

The impacts on rural communities are devastating. Communities that relied on such water for livelihoods, growing food, and day-to-day use, now see pipelines that take water into the city, passing their houses. When construction of the pipeline began, protesters were shot and killed by police. Today, communities struggle with water scarcity and water quality. As climate change intensifies, the city demands more water, and conflicts ensue. With worsening water conditions in villages, people rely on cities’ employment opportunities to migrate to urban areas.

A combination of legal, policy and technical reforms drives this ‘accumulation by dispossession’. Certain actors have benefited (namely urban industries and wealthier urban residents) and profited from the dispossession of water and other resources from the rich.

A Different Rule of Law

The lessons from this small example are that the rule of law acts as either a silent actor or a handmaiden of social and ecological plunder. The perception of objectivity and neutrality of the law masks its deployment by powerful actors. Thus, we should not assume that the ‘rule of law’ is inherently positive in our efforts to have a fairer and more habitable planet.

At the same time, the rule of law is a concept capable of a radically different meaning. Like many other concepts, such as human rights or good governance, its content can be derived and transformed as a result of concrete social, legal, and political struggle. The rule of law should be rooted in democracy. However, beyond merely the procedural, participatory sense, it can include democratic re-commoning of natural resources like water. Indeed, a ‘bottom up’, ‘ecological’, rule of law, would entail supporting the efforts of peoples’ struggles to define an ecologically and socially just law.


This article was originally published in The Rule of Law and Climate Change Blog, run by UCL Centre for Law and Environment. The post is reproduced on the ELR Blog with permission and thanks.

‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law

Photo by Kevin Ku

With a long history in international law, the concept of due diligence has recently gained traction in the cyber context, as a promising avenue to hold states accountable for harmful cyber operations originating from, or transiting through, their territory, in the absence of attribution.

Nonetheless, confusion surrounds the nature, content, and scope of due diligence. It remains unclear whether it is a general principle of international law, a self-standing obligation, or a standard of conduct, and whether there is a specific rule requiring diligent behaviour in cyberspace.

This has created an ‘all-or-nothing’ discourse: either states have agreed to a rule or principle of ‘cyber due diligence’, or no obligation to behave diligently would exist in cyberspace.

In their new article in the European Journal of International Law, Dr. Antonio Coco, Lecturer in Law at the University of Essex, and Dr. Talita de Souza Dias, Postdoctoral Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), propose to shift the debate from label to substance, asking whether states have duties to protect other states and individuals from cyber harms.

By revisiting traditional cases, as well as surveying recent state practice, the authors contend that – whether or not there is consensus on ‘cyber due diligence’ – a patchwork of different protective obligations already applies, by default, in cyberspace.

At their core is a flexible standard of diligent behaviour requiring states to take reasonable steps to prevent, halt and/or redress a range of online harms.

A copy of the authors’ article can be accessed here.


This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted reuse, distribution, and reproduction in any medium provided the original work is properly cited.

Article full citation: Antonio Coco, Talita de Souza Dias, ‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law, European Journal of International Law, Volume 32, Issue 3, August 2021, Pages 771–806, https://doi.org/10.1093/ejil/chab056.

The Role of Courts in Tackling Climate Crisis

Photo by Markus Spiske

Dr. Birsha Ohdedar, Lecturer at the School of Law & Human Rights Centre of the University of Essex, recently spoke at a special side event during COP26, hosted by global law firm Hausfeld, the British Institute of International and Comparative Law (BIICL) and the University of Glasgow on ‘Mobilising the Rule of Law in Climate Change’.

Birsha spoke alongside Dr. David R. Boyd (UN Special Rapporteur on Human Rights and the Environment), Prof. Michael Gerrard (Columbia Law School), Prof. Christina Voigt (the University of Oslo and Chair of the IUCN World Commission on Environmental Law, Co-chair of the Paris Agreement´s Compliance and Implementation Committee). The panel was chaired by Ingrid Gubbay (Hausfeld). The event also included keynotes from Mary Robinson (former President of Ireland) and Vanessa Nakate (Climate Justice advocate)

The panel addressed the issue of climate litigation. The role of litigation has been a rapidly emerging area in recent years. The Paris Agreement, signed in 2015, catalysed thousands of cases around the globe and has become a way to hold governments and corporations to account.

The panel built on discussions that took place in July at a ground-breaking global summit entitled ‘Our Future in the Balance: The Role of Courts and Tribunals in Meeting the Climate Crisis’, which resulted in a landmark Declaration outlining the role of the law and judiciary in addressing climate change.

Birsha’s presentation discussed the role of the judiciary in South Asia – its procedural and substantive innovations that have led to environmental rights-based public interest litigation since the 1980s. These innovations hold much promise in addressing the climate crisis.

However, as Birsha explains there are wider political-economy questions of how the courts deal with climate issues that may create obstacles. For instance, the deference to the executive on large economic projects (which often involve further climate harm), issues with enforcement of decisions, the types of environmental claims it favours, and how the judiciary deals with trade-offs between rights, justice and climate action.

In relation to the last point, Birsha argues that we may see an increase in litigation around ‘green’ projects, which negatively impact people’s rights, for instance, dispossession of land for solar energy, and for forest conservation. Thus, we need to work with lawyers and judges to better understand climate issues under a justice and rights framework, that doesn’t see ‘climate action’ further marginalising the already marginalised.

Birsha’s recent work on climate litigation includes a book chapter on litigation in India and Pakistan and a forthcoming article on climate adaptation, vulnerability and litigation in the Journal of Human Rights and Environment.

The presentation is available in the video below:

Constitutional Pluralism and Loyal Opposition

Image by Udo Pohlmann

Dr. Tom Flynn, Lecturer in Law at the University of Essex, has recently had an article published in the International Journal of Constitutional Law (I•CON) as part of a symposium on last year’s controversial PSPP judgment of the German Federal Constitutional Court (GFCC).

In that judgment, the GFCC for the first time declared a judgment of the Court of Justice of the European Union (CJEU) to be ultra vires. As the symposium in I•CON demonstrates, this decision has come in for sustained attack from many quarters, and defences of it are partial at best.

Most significantly, critics decry the PSPP judgment of the GFCC for giving succour to the authoritarian governments of particular Member States, most notably Hungary and Poland: if Germany can defy the primacy of EU law, then surely every other Member State can too?

In this context, Dr. Flynn analyses PSPP in the light of previous national court decisions (Italian, Danish, Czech, and Hungarian) that challenged the CJEU’s conception of the primacy of EU law, and argues that it cannot, on its own, be used to justify the imposition or adoption of an absolutist conception of the primacy of EU law.

Instead, we can reconceive national court objection to the CJEU’s conception of primacy as a form of ‘loyal opposition’, analogous to the political concept, where mere opposition to the tendencies and policies of the current government must not be regarded as being somehow disloyal or unspeakable.

The theory of constitutional pluralism, which conceptualises the relationship between EU constitutional law and that of the Member States as being heterarchical rather than hierarchical, must therefore not be regarded as being inherently dangerous, or as an expression of some kind of retrograde ‘sovereigntism’.

Rather, we must pay close attention to the reasoning and justification of any given instance of national disapplication of EU law. This is particularly so in the context of a Union that is showing itself increasingly ill-equipped to handle the rise of authoritarianism in the Member States: just as not all expressions of national constitutional primacy are wicked, not all expressions of Union primacy are good.

Dr. Flynn instead proposes a ‘legitimacy test’, whereby we can learn to distinguish principled, reasoned, ‘loyal’ opposition in the EU constitutional space from unprincipled, unreasoned, ‘disloyal’ constitutional backsliding.

The full citation of Dr. Flynn’s new article is: Tom Flynn, Constitutional pluralism and loyal opposition, International Journal of Constitutional Law, Volume 19, Issue 1, January 2021, Pages 241–268, https://doi.org/10.1093/icon/moab035.

Incendiary Speech Acts, Lawfare and Other Rhetorical Battles Against the Rule of Law

Photo by Chris Brignola

Dr Carla Ferstman, Senior Lecturer in Law, University of Essex

Introduction

The rule of law is embedded in UK law since the Magna Carta. Its importance to the proper functioning of democracies has been affirmed by the Council of Europe’s Venice Commission and the United Nations, among others. As Lord Bingham wrote, at the core of the rule of law is the notion ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’. Respect for the rule of law means that even the rights and interests of those who are derided in society are safeguarded in the same way as anyone else. In a society governed by the rule of law, both the government and members of society must accept that from time to time, the outcomes of judicial proceedings may not be to their liking or accord with where they consider justice lies.

Respect for the rule of law has been recognised and affirmed as a defining principle of UK democracy. But at the same time, there is a sense amongst some in government that the rule of law is being used as an arsenal against the Government. The Lord Chancellor has recently stated, ‘I believe it is incumbent upon me to ensure that the rule of law itself cannot be misused to in effect weaponise the courts [what some would term ‘lawfare’], against political decision making.’

But hasn’t the Government’s anti-‘weaponization’ gone too far? What is happening is simply an attempt to limit the power of law over the executive and to shut down those lawyers who represent clients whose claims are perceived to counter government policies. There is no ‘lawfare’ plot being prepared by over-zealous lawyers; to the contrary, what we are seeing is government reticence about the placement of law and lawyers in an effective democracy: it is a problem about respect for the rule of law.

The legislative attack

There is an increasing amount of law – some proposed, some already adopted – which seeks to restrict access to justice, constrain the powers of the courts to decide or award remedies, and/or introduces new arbitrary powers. This has been done by concentrating power in the hands of the executive and simultaneously blocking or severely limiting the role of the judicial and legislative branches of government which traditionally afford key safeguards for the rule of law.

To name a few recent examples, efforts have been made to limit parliamentary scrutiny (in the case of the adoption of the Coronavirus Act 2020) or to avoid parliamentary scrutiny altogether (the attempt to prorogue parliament to fast track the withdrawal from the EU). The government has also sought to reduce access to courts. Significant restrictions on access to legal aid already came into force in 2013, and in this same direction are the efforts to restrict judicial review and to amend or repeal the Human Rights Act ‘to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’, and to place certain powers and decisions beyond the reach of judicial review. So far, the Independent Review of Administrative Law did not find any real need for reform of judicial review. Whilst the review of the Human Rights act was still pending at the time of writing, the Parliament’s Joint Committee on Human Rights conducted its own review, ultimately concluding that there was no basis to reform the Act.

Planned restrictions are gaining force. The Environment Bill, now in its final stages of review, curbs the power of the courts to afford tangible remedies for breaches of environmental law.  There are more planned restrictions for immigration and refugee law. In its March 2021 policy statement: ‘New Plan for Immigration’, the Government sets out its plan to prevent immigrants and refugees from challenging deportation orders via judicial review. The Overseas Operations (Service Personnel and Veterans) Act puts a time limit on civil and human rights claims that can be brought against the military for alleged abuses committed overseas. The government also sought to curtail prosecutions for overseas military abuses including those amounting to crimes against humanity, war crimes and torture, though most of these measures did not survive parliamentary scrutiny. These curtailments are now resurfacing for Northern Ireland: on 14 July, the Government justified its plan for amnesties related to ‘the Troubles’ by saying: ‘We believe this approach is also important to provide certainty for the vast majority of former soldiers and police officers who put their lives on the line to uphold democracy and the rule of law while acting within the law themselves, and who now just want to live out their retirement without the fear of unfair investigations.’ The government’s characterisation of Troubles investigations as “unfair”, feeds into its unhelpful and incorrect narrative that law is the problem.

Pushbacks against the rule of law, a strong judiciary and an able barare often couched in terms of the improper use of the courts for political objectives. But when one pares back the veneer of the justifications, it is about the majority not wanting to be challenged on its actions and policies; the tyranny of the majority suits the majority just fine.

The attack on the legal profession

The ‘legislative attack’ has been matched with attacks on the legal profession – both against judges and lawyers, and to an extent, their clients. Over the past decade, the Government has used incendiary language with increasing frequency against lawyers and others who have sought to advocate publicly and before the courts against a string of government practices and policies. Incendiary language is never appropriate; it fosters divisiveness, it discourages respect for a plurality of views, can damage reputations and can also put people’s lives at risk.

The Government was criticised for her lacklustre defence of the High Court judges – termed by the Daily Mail as “enemies of the people”, with Lord Thomas subsequently revealing: ‘It is the only time in my career I have had to ask police to give us a measure of advice and protection in relation to the emotions that were being stirred up. … I think that it’s very wrong that judges should feel it.’ Following Priti Patel’s reference to asylum lawyers as ‘activist lawyers’ frustrating the removal of migrants, a man with a knife threatened to kill an immigration solicitor, launching a ‘violent, racist attack’. Prime Minister Boris Johnson has asserted his party’s intent to stop ‘the whole criminal justice system from being hamstrung by what the home secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.’

Solicitor and senior partner at law firm Leigh Day, Martyn Day, was called by Jonny Mercer MP, during a Parliamentary hearing, ‘dishonest’ with the work of his firm bringing claims against the Ministry of Defence characterised as ‘entirely the product of deliberate lies, reckless speculation and ingrained hostility’. These statements were made despite Leigh Day having been cleared of any wrongdoing by the Solicitors Regulatory Tribunal.  

The government has referred to claims against the military as “vexatious”, “spurious”, “unpatriotic” and “wholly without merit”. UK law provides a clear meaning for vexatious claims which are those brought without any foundation whatsoever. The Government appears to adopt this language as political rhetoric to admonish those bringing the litigation. Not only is it self-serving, in that the civil claims were brought against the Government, but there is little to suggest that the claims were vexatious in actual fact. To the contrary, it has been made clear that many of the claims regarding military abuses were credible and convincing. As the International Criminal Court prosecutor recently stated:

[…] there is considerable reason to treat with caution the suggestion that the allegations which have been the subject of criminal or civil proceedings in the UK resulted from vexatious claims, or to characterise one of the main solicitor firms involved, Public Interest Lawyers (‘PIL’), and its former principal Phil Shiner, as vexatious litigants. Indeed, your letter provides a more accurate reflection of the situation when you observe that, “we have settled many of the civil claims made by Iraqi nationals against the MOD and we fully engaged with the courts to deal with those cases”.

Fatou Bensouda, ICC Prosecutor

The government is protected in making public statements, which is justified because of the general interest of the public to be kept informed about current debates. The broad privileges given to members of the executive usually insulate them from legal repercussions for statements made on the job. But privileges aren’t absolute; nor should they be used as a license to mislead or to stoke divisive narratives. This point is made by the Joint Committee on Human Rights: ‘It is wrong for public office holders such as Ministers to refer generally to lawyers as “ambulance-chasing lawyers” (or other politically charged and inaccurate terms) when they represent members of the Armed Forces, veterans and civilians in their claims against the MoD—many of which claims have been very well founded claims against the MoD. The calculated and repeated use of such derogatory language by Ministers towards legal professionals is unbecoming and undermines democracy and the rule of law.’

At worst, particularly when the statements relate to ongoing proceedings, (as was the case with some statements about alleged army abuses) they fall foul of the sub judice rule, which prevents officials from commenting on ongoing proceedings. This rule recognises that comment on the (lack of) merits of a case in a public forum without due process of law, may affect the fairness of the proceedings, or the perception of fairness. Conduct, including speech acts, that is calculated to prejudice the proceedings undermines public confidence in the rule of law and will constitute contempt of court. The sub judice rule is well-recognised and well-practiced; frequently, the government has refrained from commenting on ongoing cases.  

Conclusion

One should not underestimate the long-term impact of attacks on the rule of law. The rule of law is there to protect everyone. It is a short-sighted strategy to weaken law and legal structures for quick political gains. Next time around the stakes may be different, with new issues to confront, with different actors promoting new agendas. But all a weakened rule of law will do is make it more difficult to navigate the many complex problems all governments continue to be confronted with.

The War on Compensation: Troubling Signs for Civilian Casualties in the Gaza Strip

Photo by Timon Studler

Dr. Haim Abraham, Lecturer in Law, University of Essex

Follow Dr. Abraham on Twitter here

The last round of belligerency between Hamas and Israel claimed a significant toll from civilians, with many arguing that some of the more devastating activities conducted by the IDF were in breach of the laws of war (for example, herehere, and here). Just days before a ceasefire was declared, Judge Shlomo Friedlander of Israel’s Be’er Sheva District Court released his ruling in the case of The Estate of Iman Elhamtz v. Israel, dismissing a claim for compensation for the killing of a 13 year old girl from the Gaza Strip by IDF forces in 2004. At first glance, this case seems to be just another instance in which the state’s immunity from tort liability for losses they inflict during combat is reaffirmed. However, a closer examination reveals that it is a significant development of the immunity, which could have vast ramifications for Palestinians’ ability to obtain compensation for losses they sustained from IDF activities that were in breach of the laws of war. Currently, Israel is immune from tort liability for losses it inflicts during battle, even if combatants inflicted the loss negligently. Yet, Judge Friedlander seems to expand the immunity further so that it applies not only to combatant activities that comply with the laws of war, but also to war crimes. This approach to the immunity has yet to be considered by the Supreme Court, but it is in stark opposition to international trends towards the scope of state’s immunity from tort liability.

The Elhamtz Case

The tragic events that resulted in Iman Elhamtz’ death unfolded in 2004 while Operation “Days of Penitence” was being conducted in the midst of the Second Intifada. An IDF military post at south Gaza Strip near Rafah was under high alert against threat of attack. Elhamtz approached the post, but the lookout did not properly execute his duties resulting in Elhamtz reaching within 100 meters of the post before being detected. Surprised and, according to their testimony, fearing that she is there as a part of a terrorist activity, soldiers began shooting towards Elhamtz even as she was fleeing. Elhamtz was killed. Major R, who was the commanding officer at the time, charged her dead body and engaged in ‘dead-checking’. A total of 20 bullets were found in her body.

A military court exonerated Major R of criminal wrongdoing. Elhamtz’ estate sought a ruling that would hold Israel accountable for her death through civil proceedings, and filed a tort law-suit against Israel in the Be’er Sheva District Court in 2005, arguing that she was shot and killed negligently and in violation of international humanitarian law.

In May 2021, the court dismissed their claim, despite finding that the military force indeed acted negligently and in violation of international humanitarian law. Judge Friedlander found that the military force was negligent on two counts. First, the lookout failed to perform his duties. If he was not preparing for a shift change but had properly observed the post’s surroundings, Judge Friedlander held, Elhamtz could have been spotted from a greater distance, chased away and probably would still be alive today. Second, the immediate and excessive use of force when there was no clear threat was in breach of the rules of engagement. The court adopted these rules to determine the relevant standard of care that is expected from a military force under such circumstances and held that this standard was breached. The military force should not have fired on Elhamtz to begin with, should have stopped when she began to flee, and dead-checking was completely incompatible with the standard of care that is expected from combatants.

The court also held that the actions of the military force violated the principle of proportionality. The sheer fact that Elhamtz was near the post, according to Judge Friedlander, does not mean that combatants can use deadly force against her. Even if she posed a risk, which was highly doubtful, she should have been chased away or restrained, not killed.

The sole reason for which Israel was not held liable for the death of Elhamtz was that Israel, like many other countries, has a special immunity from tort liability for losses it inflicts during armed conflict called the ‘combatant activities exception’. Through his opinion, Judge Friedlander paved the way to reject future tort claims that are likely to be filed by Palestinian casualties from the most recent round of fighting. But to understand the legal mechanism that allows this reality, a better appreciation of the immunity is needed.

The Combatant Activities Exception

In the mid-20th century, states began reforming laws concerning their immunity from tort liability, by removing procedural and substantive hurdles for filing claims, as well as limiting the scope of the doctrine of sovereign immunity to enable holding foreign states liable in tort. Nevertheless, while immunity from liability became more limited, it was not done away with altogether. Some pockets of immunity remained, including the combatant activities exception, which, essentially, provides a blanket immunity from tort liability for wrongful actions conducted in battle.

The scope of the combatant activities exception varies between jurisdictions. Canada, for example, has what appears to be the broadest statutory exception, which precludes liability for “anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.” The U.S. statutory exception is somewhat more limited in its scope, maintaining that no liability would be imposed in “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”

When Israel first enacted its version of the combatant activities exception through the Civil Wrongs (State Liability) Act 1952, it was very similar to the U.S. exception, simply stating that Israel is not “liable in tort for a combatant activity committed by the Israel Defense Forces.” Initially, courts interpreted the exception narrowly, holding that it is applicable only to activities in which there was an objective and immediate risk that is of a combatant character. However, with each major conflict with the Palestinian population, the scope of the exception was expanded through judicial interpretation and by legislative amendments. These expansions have three notable themes.

First, the boundary between combatant and non-combatant activities has been blurred. During the First Intifada (1987-1993), IDF forces faced large-scale violent protests. Policing operation within the Occupied Palestinian Territories exposed the forces to imminent risk to their lives, and courts were torn between a narrow and a broad interpretation of the combatant activities exception. The narrow approach ruled out the exception’s applicability, holding that policing activities are not combatant activities, even if they are conducted by military forces who are exposed to considerable risks. The broad approach held the contrary view, finding that the exception is applicable even for policing activities due to the real risk to soldiers’ lives, who were operating in a hostile environment. Ultimately, the broad interpretation of the combatant activities exception was adopted by the courts and the legislature, expanding the scope of the exception to include policing and counter-terrorist activities. The exception became so broad that it currently applies to activities in which a soldier subjectively (and mistakenly) feels at risk, as were the circumstances that led Judge Friedlander to hold that Israel cannot be held liable for the killing of Iman Elhamtz.

Second, non-Israeli Palestinians are viewed as ‘the enemy’, and their tort claims are thought of as a continuation of terrorist activities through civilian means. For example, in 2005 the Israeli parliament sought to expand the scope of the exception to include any and all injuries in the Occupied Palestinian Territories, whether combatant or not. This legislation was struck down by the Supreme Court on the grounds of it being unconstitutional. Similarly, a 2012 amendment expanded the applicability of the exception to all non-Israeli residents of the Occupied Palestinian Territories, regardless of the character of the activities that resulted in the loss (this legislation is currently being reviewed by the Supreme Court).

Third, the temporal and geographical distinction between war and peace has been undermined. The original interpretation and definition of the exception meant that it was applicable only to engagement in actual hostilities. The courts examined the circumstances that resulted in the injury, analyzing the particular location in which the activity took place, taking into account a small window of time before or after it. Following the events of the Second Intifada (2000-2005), as well as the legislative expansion of the exception, courts consider an ever-increasing context. Courts no longer examine just what happened on the particular street and time in which someone was injured. Instead, they refer to the general area and history to deduce whether combatants faced a risk that would fall under the scope of the exception, sometimes expanding the timeframe to years prior to the activity that resulted in the injury itself.

The overall effect of the expansion of the combatant activities exception resulted in a dramatic decrease in the number of tort suits being filed, from thousands of cases in the early 2000s to a handful of cases a year currently, and a finding of liability against Israel is nearly impossible. Nevertheless, the scope of the exception is still being contested by plaintiffs, and it is far from clear that its current form can be Justified (see, for example: hereherehere, and here).

‘Testing the Waters’

The dismissal of the Elhamtz case coincided with the growing criticisms of Israel’s violations of the laws of war during the 2021 round of belligerency between Hamas and Israel. These should have been two unrelated matters. One revolved around a tragic incident in 2004, the other was still ongoing in May 2021. Yet, Judge Friedlander’s opinion, which held that the exception applies not only for the military’s negligent actions, but also for its actions that violate international humanitarian law, seems to create a link between the two. In the obiter, Judge Friedlander gave contrasting examples to illustrate the limits of the combatant activities exception, noting that even if one country indiscriminately and disproportionately bombs the civilian population of another country during an armed conflict, it is a combatant activity for which the exception applies.

Judge Friedlander did not need to use this example to reach the conclusion that the exception applies. The Supreme Court has ruled years ago that claims for compensation for violation of international law should be pursued through separate proceedings, not through tort claims, and that the exception applies even for negligent injuries by the IDF. Invoking this particular example at that particular time does not appear to be a redundant hypothetical, but rather laying the groundwork for dismissing future claims that are bound to be filed against Israel for the losses it inflicted in 2021.

The Supreme Court has yet to give clear guidance on whether the combatant activities exception can apply when the State’s actions are in clear violation of the laws of war. There is a growing trend in the international community to limit the availability of states’ immunities in such cases. If the Supreme Court of Israel was to adopt Judge Friedlander’s approach, it will be expanding the scope of the combatant activities exception significantly, blurring the line between legitimate combatant activities and criminal activities. Such an interpretation appears to contradict the position that was raised in several obiters by Israeli courts. On various occasions, courts clarified the limits of the combatant activities exception by stating that criminal activities, such as looting, do not fall under the combatant activities exception even when they are done on an active battlefield. It is hard to find a rationale that will allow for an imposition of tort liability for looting property but not for committing war crimes. Neither is a legitimate act of war, and both should be excluded of the dispensations that accompany sanctioned warfare.

This post first appeared on the Blog of the European Journal of International Law and is reproduced on our research blog with permission and thanks. The original article can be accessed here.