In the second of her series of articles, Angela Patrick looks at how the common law protects the fundamental right of access to justice.
As judicial enthusiasm for common law rights protection has grown, the justice system has come under unprecedented pressure.
It is apt to begin by considering access to justice and the courts. As judicial enthusiasm for common law rights protection has grown, in parallel, the justice system has come under unprecedented pressure. If common law rights are limited principally by the constitutional and institutional competence of the judiciary, access to justice is an area where the courts’ expertise – and competence – might be considered at its highest. The HRA and article 6 of the European Convention on Human Rights (ECHR) provide express protection for the right to a fair hearing by an independent and impartial tribunal, but only in the determination of civil rights and obligations. It is outside the scope of this short piece to consider the breadth of protection offered for justice rights by both the common law and the HRA (whether in article 6 or in the procedural guarantees offered by other parts of the ECHR). However, a brief reflection on common law and HRA protections for access to justice illustrate the strengths and the limits of both.
The common law and access to justice
Many common law principles of fairness might more properly be framed as protection for the right of access to justice, including, for example, the rights: to be heard (Ridge v Baldwin  AC 40
); to have notice of the case against you (R v Secretary of State for the Home Department ex p Doody  1 AC 531
); to have a hearing free from bias (Dimes v Proprietors of Grand Junction Canal
(1852) 3 HL Cas 759); and to open justice (Scott v Scott  AC 417
). Many of these concepts are reflected in the fair trial rights protected by ECHR article 6 and in other international treaty protections.
However, the common law expressly recognises a fundamental right of access to justice and to the courts. In R v Secretary of State for the Home Department ex p Leech (No 2)  QB 198
, Steyn LJ held at 210A that: ‘It is a principle of our law that every citizen has a right of unimpeded access to a court.’ In R v Lord Chancellor exp Witham  QB 575
, Laws J held that the common law affords special protection to the right of access to a court as a constitutional right. Following the principles of legality, that right cannot be limited without express provision enacted by parliament. There was no express foundation in the Supreme Court Act 1981 (as it was then known) that permitted the imposition of fees that would absolutely deny individual access to a court. He considered at 585B: ‘As regards the ECHR jurisprudence … the common law provides no lesser protection of the right of access to the Queen’s courts than might be vindicated in Strasbourg.’
The common law right of access to justice is not without limit. Protection for access to justice remains burdened by uncertainty and inaccessibility. In R v Lord Chancellor ex p Lightfoot  2 WLR 318
, the Court of Appeal accepted the right of access to justice as a fundamental common law principle, but rejected a claim that a requirement to pay a deposit in bankruptcy towards the cost of the fees of the Official Receiver violated that right. The court considered that the fees were not a barrier to court access but a contribution to the costs of services. In R v Legal Aid Board ex p Duncan
 COD 159, a Divisional Court rejected a challenge to a new scheme for legal advice and assistance in mental health tribunals, recognising that there was a common law right of access to justice, which reflected ECHR provision, but that it was limited. In light of the competing demands on public resources, for example, it did not encompass a general duty on the taxpayer to ensure that an individual could instruct a representative of his/her choice.
The HRA and ECHR article 6
Many of the first successful challenges under the HRA focused on article 6 and some of the first declarations of incompatibility concerned the right to a fair hearing. In International Transport Roth GmbH and others v Secretary of State for the Home Department  EWCA Civ 158
, a fixed penalty scheme fell foul of article 6 standards. In R v Secretary of State for the Home Department ex p Anderson  UKHL 46
, the home secretary was insufficiently independent for the purposes of article 6 to set the tariffs served by mandatory life prisoners. In both cases, the common law on access to justice was cited, but the ultimate remedy provided by a declaration under the HRA, prompting speedy changes to the law.
ECHR article 6 also has inherent limits. While important specific guarantees are provided for fairness in criminal proceedings, its wider protection is expressly limited to the determination of ‘civil rights and obligations’. This protects administrative decisions that affect rights but are not court or tribunal proceedings. However, some public decisions are outside the scope of protection offered by article 6, including, for example, expulsion, citizenship or nationality decisions and tax disputes. In this regard, the protection offered by article 47 of the Charter of Fundamental Rights of the European Union (right to an effective remedy and to a fair trial) – which has no such limitation – is important (see, for example, LH Bishop Electric Co Ltd and others v HMRC Commissioners  UKFTT 522 (TC)
). If successful, a Charter challenge pursuant to the European Communities Act 1972 (ECA) might see incompatible primary legislation disapplied, a remedy not available to either the common law or the HRA (Benkharbouche and Janah v Embassy of the Republic of Sudan and Libya  EWCA Civ 33
Article 6 is essentially a fair trial guarantee. It does not prescribe particular features for domestic justice systems, beyond that they comply with the requirements of a fair hearing; so, it provides no protection for the right to trial by jury recognised in England and Wales. However, in Golder v UK App No 4451/70, 21 February 1975
; (1975) 1 EHRR 524, the court clarified that any measures that fundamentally undermine effective access to a court may violate the right to a fair hearing protected by article 6. Article 6 incorporates protection for a right of access to a court as it would be ‘inconceivable’ for the ECHR to do otherwise (at para 35).
The ECHR right of access is not absolute and may vary ‘in time and place according to the needs and resources of the community and of individuals’ (see Golder
at para 38). A public authority, for example, must provide legal aid only where representation is ‘indispensable for an effective access to the court’ in the circumstances of the case, including where compulsory or where the complexity of the case requires it (see Airey v Ireland App No 6289/73, 9 October 1979
; (1979–80) 2 EHRR 305 at para 26). Where a system of legal aid is in place, the European Court of Human Rights has recognised that limits may apply, including in merits criteria, but that these should not be arbitrary in their operation. The court recognises that limited public funds may require difficult decisions on allocation to be taken (see, for example, Ivison v UK App No 39030/97, 16 April 2002
, Eckardt v Germany App No 23947/03, 10 April 2007
and Director of Legal Aid Casework and Lord Chancellor v IS  EWCA Civ 464
at paras 61–65).
The common law right of access to justice has yet proved valuable to the interpretation of the rights protected by the HRA and by supplementing that protection in cases where the HRA does not apply. In Ahmed and others v HM Treasury (No 1) and other appeals  UKSC 2
, for example, in the first case it heard, the Supreme Court held that the making of an asset-freezing order was ultra vires as it made no provision for the fundamental right of access to a judicial remedy (see Lord Mance at para 246, for example). Previous authority prevented them from considering the requirements of the HRA, including in article 6. The common law rights were sufficient to bar the making of draconian orders without remedy and without express parliamentary authority. In making this determination on the requirements of domestic law, the court considered the jurisprudence of the Court of Justice of the European Union in Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Union Joined Cases C-402/05P and C-415/05P, 3 September 2008
;  AC 1225 on the equivalent right in EU law, which in turn had been informed by the development of ECHR article 6.
For similar consideration of the protection of justice rights provided across the common law, the HRA and EU law, consider the treatment of closed material procedures in domestic law (see, for example, Al Rawi and others v Security Service and others  UKSC 34, Gulamhussein and Tariq v UK App Nos 46538/11 and 3960/12 (pending), and Kiani v Secretary of State for the Home Department  EWCA Civ 776).
The post-LASPO challenges
In the post-LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) landscape, challenges have been brought in the ordinary public law to oppose growing restrictions on the provision of legal advice and services to those without independent means, with varying degrees of success. While each of these cases has involved arguments about access to justice grounded in the common law and the HRA, they have largely been determined on ordinary public law grounds. For example, in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWCA Civ 91
and in R (Ben Hoare Bell Solicitors and others) v Lord Chancellor  EWHC 523 (Admin)
, challenges succeeded because post-LASPO regulations restricting access to legal aid were inconsistent with the statutory purpose of that Act (following Padfield and others v Minister of Agriculture, Fisheries and Food and others  AC 997
In the Supreme Court, the residence test appeal also succeeded on the question of ultra vires (R (Public Law Project) v Lord Chancellor  UKSC 39
). The government did not have the statutory power to make the relevant secondary legislation. Arguments were heard on both HRA protections and the common law, focusing on discrimination and equality before the law and dismissed with little consideration by the Court of Appeal (see  EWCA Civ 1193
). While the success of that case is crucially important, significant issues of principle about the protection offered by our law against discrimination in access to justice are yet to be determined.
That these cases have succeeded is important and illustrates that the courts are willing to constrain unlawful restrictions limiting access to justice. That they have not grappled with the protection offered by fundamental rights in common law or the HRA signals either that the value of those guarantees is limited or that judges may be unwilling unnecessarily to apply those rights in circumstances where the state has an expressed policy to constrict funding except for those most in need, approved by parliament.
Human rights lawyers have been warned to start first with the common law before resorting to the protections of the HRA (May 2017 Legal Action
11–12). That guidance should be taken seriously. The common law may provide arguments outside the protection of fundamental rights that are more attractive to the court and ultimately more effective for clients. An ordinary public law challenge may provide the simplest and most effective result. In access to justice cases, a single option will rarely provide a comprehensive answer. When parliament acts, both the HRA and the common law have their limits. While the ECA remains in force, a Charter claim might provide the most effective means to challenge primary legislation, if a measure is within the scope of EU law. Although the courts may hold particular constitutional and institutional competence in respect of access to justice, the right of access to justice is limited in both the common law and the HRA. Where twin policy and budgetary barriers are raised, strong justification is required before either the common law or the HRA will provide a remedy. Despite their constitutional and institutional competence, judges may be reluctant to invoke fundamental rights as a constraint on how access to courts might be determined. Against this background, despite sound guidance to start with the common law, considering every tool in the box – to the reach of its limits – may yet be well advised.