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Legal aid


Legal aid is the primary British scheme for ensuring that those unable to afford their own lawyers in criminal cases, and in many categories of civil cases, have the services of both solicitors and barristers provided at public expense. All liberal democracies have some version of the scheme. Legal aid is not itself a human right in the normally accepted sense, but the existence of something like it is a necessary logical deduction from more formally acknowledged rights. Essentially any version of a commitment to due process of law, or to a fair trial as implied by doctrines of natural justice in English law, necessitates free provision of legal services to those who cannot afford counsel. This is because of the paramount importance of the accused being able to make their own arguments as efficiently as the prosecution can make their’s. Especially in the accusatorial process, but to a large extent also in a continental inquisitorial criminal process, a defendant would be totally vulnerable were he to have to defend himself against charges argued by legal professionals.


It is generally recognized that the need for professional legal advice starts long before the trial, almost certainly at the moment of arrest, and thus most legal aid systems provide for free legal counsel in the police station during preliminary interrogation. In the USA the Miranda warning requires the police expressly to make the point that the suspect is entitled to free legal aid as soon as he is arrested and that he should not say anything to the police in the absence of such counsel. Legal aid systems like the one in place in the United Kingdom often provide limited free legal services in civil cases as well. Although this might be seen as a form of welfare provision that a state could legitimately dispense with, there is a very powerful argument, at least in the sort of public law cases where constitutional and human rights are being challenged, that free provision of legal services is as much a necessary implication of civil rights as in the criminal process. Throughout the West there is a standard complaint that legal services are so expensive, and the cut-off point at which an applicant for legal aid is deemed rich enough not to be entitled is so low, that people of middle incomes are severely discriminated against. Thus the very provision of legal aid produces a possible rights violation in the sense of discrimination in terms of access to justice. However, legal aid has often been seen as primarily a way of subsidizing the more affluent in their legal challenges, because the genuinely poor are unlikely, except in criminal cases, to make use of the courts under any system. As a result, British administrations since the last decade of the 20th century have systematically cut back on the provision of legal aid as a cash payment to lawyers. It is likely that a fully-fledged public defender scheme, as exists in most states of the USA, will replace it before long. (See also right to counsel.)


Legal certainty


Legal certainty is a value held in the highest esteem by judges and lawyers in most jurisdictions. In origin, it has nothing to do with constitutional or human rights law, being far older as a value, coming more from commercial law and, to some extent, criminal law. The significance of legal certainty is that law is, to a large extent, a set of rules which a society erects to make it possible for its members to plan and organize life successfully: i.e., it is a stabilizing social mechanism. This legal certainty in contract law is of great importance to businessmen, because of their need to know what will happen to a deal they make under all imaginable circumstances. To some extent certainty is a rival to actual justice: the businessman may well be prepared to be treated unfairly, unjustly, from time to time, as long as he knows what he can expect and can plan for it. In contrast, a legal system which looked deeply into all the details of every contract, and considered deep matters of equity, might be one where no-one could safely make a routine contract at all. In criminal law the ruling idea, which leads to the constitutional recognition of a human right against retroactive criminal law (see retroactivity), is that it is fundamentally unfair to punish a person for doing something he could not at the time have realized was illegal. For reasons like this, judges are often very unwilling to overrule previous decisions, or to change and develop a line of statutory interpretation, even where they accept that the consequences of the current situation can be unjust.


It is not at all hard to find cases before the English Law Lords, for example, where one of them will say publicly that the ruling precedent is wrong, that he voted against it in the case which established it, but that he will support it now, in the interests of legal certainty. Where legal certainty has occurred as an important element in human rights law, it has been very much in this sort of a context, where state power has been interpreted in such a way as to preclude what much of the population would regard as a just solution because of the felt need to preserve the value of certainty in the law. In particular, we find examples of a politically unpopular protection of the value of legal certainty in some of the transition democracies when it comes to the issue of punishing those who committed crimes, or did what would not be criminal, to protect the communist state against dissidents. In Hungary, for example, the Constitutional Court overthrew a statute which would have extended the time during which certain crimes could be punished, without which agents of the former state would go free. They did thus in the name of legal certainty, because they took such a doctrine to be so vital to a liberal democratic society that they feared risking the legitimacy of the new state if they did not protect the value, even when to do so was also to protect obviously guilty murderers. The situation is more complex than the example might suggest, however. The Court went on, later, to use the constitutional importance they had given to legal certainty also to strike down legislation that would have savagely reduced some welfare rights. The argument then was that people had developed a ‘legitimate expectation’ that some part of that welfare blanket would continue and planned their lives accordingly, and now not even the imperatives of economic reform could undermine the value of legal certainty. There can be little doubt that a major aspect of a liberal democratic society is that it is a society ‘under the rule of law’: the randomness and partiality of government action, if it is not tied to predictable and generalized law, threatens all human rights. At the same time, human rights activists can legitimately worry if legal certainty is going to be an argument allowing decidedly undemocratic and anti-rights parts of a legal culture to remain. Thus the Czech court, faced with a virtually identical case, held that ‘true’ legal certainty required that the values that ‘ought’ to have prevailed in the previous communist state required them to allow the punishment: they considered that not to do so would threaten the values, and even the legitimacy, of the new society.


Level of scrutiny


The level of scrutiny concept is part of the US constitutional interpretation of when a statute breaches the guarantee of equal protection of the laws in the Fourteenth Amendment. In order for a classification of people to be used for policy purposes in statutes, it must be shown that the state has some good reason for making the classification. This is to avoid overt, and even more to avoid subtle, discrimination in breach of basic human rights. For example, a town council might ban parking in the town centre because of overcrowding, but allow certain categories to be exempted. Few would object to exemption for disabled drivers, but it would be quite different if there were exemption for drivers of very expensive cars; in US parlance this second scenario would be an unconstitutional denial of equal protection, while the disabled exception would probably not. The level of scrutiny methodology is a technique for assessing when such distinctions are or are not acceptable. Depending on the basis for the classification, the government may not only have to pass the ‘ordinary scrutiny’, it may have to pass a ‘strict scrutiny’, and there exists a less well-defined intermediate version known as ‘heightened scrutiny’. A politically uncontroversial classification, perhaps an income classification where welfare legislation is involved, requires the government simply to show that the classification ‘reasonably’ relates to a ‘legitimate’ state interest. Where race is involved the strict scrutiny level applies, and almost eradicates the possibility of legitimate use of such a classification; the state would have to show that the classification was ‘closely related’ to a ‘compelling governmental interest’. It has been suggested that nothing short of a major public health crisis or national security issue or something of that kind could now persuade the Supreme Court to find that a racial classification was legitimate. (This idea of inherently suspect category goes back to the Court upholding the constitutionality of internment for US-Japanese citizens in 1943.) Heightened scrutiny has come to be applied to gender-based classifications, requiring a ‘substantial’ relation to an ‘important’ governmental interest. The strict scrutiny test also applies to any classification involving a fundamental protected freedom. Thus if the US Bill of Rights (see Bill of Rights (USA)) protected freedom of movement (it does not), the example of a parking restriction would probably only be acceptable if overcrowding could be shown to be at crisis levels.


To a large extent these tests are simply formulae to be applied to cases to suit the appropriate judicial system’s conception of the importance of the issue and the political sensitivity of the classification. Nothing remotely objective can be made of distinctions between substantial and close connection, nor important or compelling interests. Nevertheless, the impact of such classifications, if only through the chilling effect of potential litigation, is considerable. Furthermore the mere existence of a hierarchy of scrutinies presents a challenge to pressure groups; the women’s movement has tried since the 1960s to get gender promoted to the level of strict scrutiny, but, despite winning most of its cases, has not yet achieved this. Similar concepts to such classificatory analyses are found in several other jurisdictions, and the jurisprudence of the South African Constitutional Court, in part based on the US example, is already developing careful equivalent tests.


Libel


Libel laws exist under a variety of technical names in all jurisdictions and, in common law, libel, along with slander, is only one branch of the general civil tort of defamation. The relevance for human rights is twofold. Some systems actually recognize a right not to be defamed, under the general notion of protecting an individual’s ‘honour’; the Universal Declaration of Human Rights puts such a protection against attacks on ‘honour and reputation’ along with protections for ‘privacy

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