Our legal system is the last defence against the far right – and it's crumbling

Access to justice is not only a fundamental principle, but also a beautiful one. That is particularly true in the context of what is known as public law, the rules which govern what the state can and cannot lawfully do. It is in this area that we most often see Davids, individuals, taking on Goliaths, apparatuses of the state. The beauty here derives from Goliath himself ‘arming’ David through the provision of a functioning justice system, which is – at least ideally – open to all.

When people access justice to review and test decisions made about them, the precedents established in their cases can change lives – not just their own, but others’, too. Take for instance ‘Claire’, Public Law Project’s client, who was the victim of prolonged abuse by her former partner. When she was seeking separation, she had no income to pay for a lawyer and her only ‘capital’ was her share in a home jointly owned by her abuser. Although she could not sell this asset, the Legal Aid Agency (LAA) decided that it rendered her ineligible for legal aid. The LAA’s decision meant she faced complex legal proceedings against her abuser without any legal support. But Claire successfully challenged the LAA through the application of public law principles. She has ensured that people suffering domestic abuse, most often women, are able to access legal support even when they have trapped capital.

Next consider ‘K’, another Public Law Project client, who relied on benefits while caring for children with complex needs. The DWP informed K that due to their error she had been overpaid £8,600 in benefits and would need to repay it. Owing that amount is significant for most people. Owing that amount when you are dependent on benefits amid a cost-of-living crisis is devastating. K challenged the decision and won. That ruling can now be used by others in similar situations. 

These women took on the might of the state and changed things for the better, demonstrating that the law is not a barrier to a well-functioning state, but a precondition for it. 

But to win a case, it must first be heard. Delays in the criminal and civil system mean too many people are living in limbo while they wait for their day in court. Evidence vital to criminal proceedings is deteriorating while large numbers of potentially innocent people are being kept incarcerated on remand for too long. Stress, anxiety and physical health are suffering while citizens struggle without services they need, uncertain of when they will know about their entitlements.

It means other parts of the state are left picking up the problems the courts cannot resolve in a timely fashion, becoming more strained as a result. This is leading to public trust in institutions eroding.

With the system crumbling, I’m left reluctantly asking if we can still call it a ‘justice’ system. Without meaningful investment, it risks becoming another weapon for Goliath to wield against David.

Justice is a public service for us all. Time and again it has proven its vital role in protecting our democratic constitution. That it does so in highly politically charged environments, where at times its role and integrity is attacked, lends more gravity to the conclusions that they reached. It can truly be said that the courts act without fear or favour, because certainly they have been tested.

As well as needing more resources, the justice system requires something else: an active restoration of broad respect for its role in society. This would be a priority at any point, but it is an essential investment now.

Across the world, the far-right is becoming increasingly adept at gaining power, leading to authoritarian practices including unfair, undemocratic and unlawful state decision-making. In circumstances where political power is taken by individuals with disdain for any rules designed to restrain the mighty, it is the justice system that becomes the last bastion of defence for everyone else. If we, in this country, want to make sure this line of defence will be available to us in the event of authoritarian attacks, we first need to fortify our esteem in justice.

We must not be tempted to look at the rise of the far-right globally and dismiss it as something that “couldn’t happen here”—although there are worrying signs of exactly that sort of complacency. We have, as a nation, simply stopped talking about the far-right riots that rocked England and Northern Ireland last summer. So, let us recall some of the images from those riots: a mob trying to set fire to a hotel housing asylum seekers; a Black man being beaten in central Manchester. The social forces that overflowed then have not gone away. In power, they would have the means to systemically target the marginalised and dissolve the principles that underpin a healthy democracy for us all.

Knowing that, it would be a failure of responsibility not to mitigate against this possibility before authoritarians gain the levers of power. Investing deeply in the justice system –rearming David– could be the single, greatest way to enshrine a fairer and stronger society for us all, whatever the future might hold.

Shameem Ahmad is Chief Executive Officer at the Public Law Project, and a contributor to the Nuffield Foundation’s Public Right to Justice programme.

Do you have a story to tell or opinions to share about this? Get in touch and tell us more.