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Lord Neuberger (President of the UK Supreme Court) and Lady Hale (Deputy President of the UKSC) have spoken of the fundamental need for and importance of openness, transparency and access to justice in a free and open society.
In doing so, they have also voiced some concern that, without the ability to enforce legal rights, those legal rights become valueless.
Issues considered by Lord Neuberger and Lady Hale on 2 October 2013 included closed sessions (or closed material procedures), anonymity in the Family Court and Court of Protection (COP), cuts to civil legal aid and proposed reforms to judicial review.
Lord Neuberger spoke of the conflicting principles of open justice and ensuring relevant material is placed before the court and parties are not prevented from producing evidence because they cannot do so in open court.
His feeling was the courts should try to minimise the extent to which it is necessary to go into closed sessions and, where they can’t be avoided, to seek to mitigate the consequences and injustices of doing so. Lady Hale added there is a responsibility on the lawyers, and particularly on the lawyer requesting the closed sessions or closed material procedures, to consider what this will add and whether the benefits will outweigh the disadvantages.
There was also a recognition that certain cases, for example those involving families or very vulnerable individuals, might need some degree of anonymity and secrecy. This was particularly where, without these sensitivities, such parties might be prevented from seeking justice where they do not wish to take their private matters to a public court.
Lord Neuberger voiced his fear that, without legal advice or representation, parties might choose to forego their legal rights, thus rendering those legal rights valueless.
Alternatively they could seek to enforce them as a litigant in person thereby adversely affecting themselves and potentially all court users (who would find their cases slowed down in a clogged up system).
Whilst appreciating there may be abuses of the current system which need to be cut down, Lord Neuberger’s view was that any limitation of rights to complain about infringements of the state etc have to be looked at with great care and be justified.
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