‘I genuinely believe “access to justice” is the hallmark of a civilised society.’ It was with those inspiring words that justice secretary Ken Clarke introduced his government’s legal aid reforms last November, writes Jon Robins. They are the most radical reforms to the scheme since it was introduced as a fundamental building block in the architecture of the post second world war welfare state.
Clarke’s plans for publicly funded law amount to a demolition job. His proposals are predicated on cutting a whopping £350 million from that total £2.1 billion budget. So what, one might ask, might Clarke have done to the legal aid system if he was NOT of genuine belief that ‘access to justice’ was so vital for our civilisation?
One might then ask what does ‘access to justice’ mean anyhow if not a fully-funded legal aid system? Is it a noble aspiration that should make our hearts collectively lift at its mention, or is it a load of meaningless tosh pedalled by politicians and lawyers to suit their own self-serving ends?
These are all questions I have asked of leading lawyers, thinkers and campaigners over the last week. Roger Smith, director of JUSTICE, has spent a career at the, er, ‘access to justice’ coalface since starting at Camden Law Centre in 1973. ‘Frankly, I think the phrase is just best avoided by everybody,’ begins Smith. ‘In its original concept it had quite a precise definition but taken away from its roots it is completely meaningless.’ As for its origins, he references the work of the Italian jurist Mauro Cappelletti.
In the 1970s, the law professor directed a research project funded by the Ford Foundation on ‘access to justice in modern societies’ and which led to a four volume series (called, you guessed it, ‘Access to Justice’). Cappelletti once said: ‘The right of effective “access to justice” has emerged with the new social rights. Indeed, it is of paramount importance… Effective “access to justice” can be seen as the most basic requirement, the most basic human right, of a system which purports to guarantee legal rights.’
In the UK, it has been used and abused on a regular basis (Lord Woolf’s 1996 report, New Labour’s 1999 Act etc). It has always been ‘a disputed concept – what do we mean by “access” let alone “justice”?’ reflects James Sandbach, policy officer at Citizens Advice. The ‘post-war consensus’ has been that legal redress should not be exclusive to any section of society and ‘certainly not a commodity beyond the means of all but the wealthy’. ‘Legal aid and Citizens Advice Bureaux were established to help those without the skills, income or sharp elbows to obtain fair redress. This is a basic tenet of the rule of law,’ he adds.
Sandbach fears we’re moving away from that consensus. The Coalition’s reforms will ‘not only abolish much of the civil and family legal aid but restrict access to advice in police stations and expose claimants in civil cases to additional costs even if they win’. ‘The prevailing philosophy is one of self-help and personal responsibility.’
Professor Richard Moorhead makes the point that ‘access to justice’ doesn’t simply equate to ‘legal aid’. ‘Access to justice’ means being ‘treated fairly according to the law and if you are not treated fairly being able to get appropriate redress’. ‘That doesn’t just mean access to lawyers and courts. It means access to ombudsmen, advice agencies and the police. It means public authorities behaving properly. It means everyone having some basic understanding of their rights. It means making law less complex and more intelligible.’
It’s a point echoed by self-styled radical lawyer Michael Mansfield QC makes. It is ‘a much broader concept than access to the courts and litigation’, he says. ‘It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems.’
Shami Chakrabarti, director of Liberty, reckons the concept struggles with a bit of an image problem. ‘Fundamental rights and freedoms and the rule of law are vital checks and balances in any civilised society – but meaningless without “access to justice” or the practical means of understanding and enforcing the law of the land,’ she says.
Whilst ‘we all love schools and hospitals’, Chakrabarti notes, legal advice and representation ‘doesn’t seem important until you’re really in trouble’. The law (‘like joy and grief’) can be a great leveler, she says. ‘There is no longer a level playing field. Unlike many countries in the world no one checks your wallet in the emergency room. But when it comes to legal advice, the rich can pay, the not-so rich will struggle to find the means and under new reforms, even the poorest may be shut out from a legal aid system that we were once proud of.’
So, finally, what of the justice secretary’s proclamation? Roger Smith claims to be ‘quite heartened by Ken Clarke’s sweet words’. ‘He seems to be endorsing something. I’m not quite sure what. But it leaves the door open. But are his proposals outrageous? Yes, they are.’
The campaigning lawyer and co-sounder of Christian Khan solicitors Louise Christian has little patience with the justice secretary’s declaration. A society was ‘only democratic and therefore “civilized” if everyone has broadly the same opportunities’, she argues. ‘When I started my firm some twenty five years ago, it was possible to believe in legal aid as a crucial instrument of democracy and part of the welfare state.’
Our system of publicly-funded law is being ‘destroyed at precisely the same time that austerity cuts and increases in student fees’ are making society ‘much more unequal than it was then’. ‘It is no good Ken Clarke making bland statements of the obvious while he continues to be part of a government which is presiding over a massive attack on a civilised society,’ she said.
The article above appeared in the Guardian here.
Professor Rod Macdonald of McGill University: ‘Before there was ‘access to justice’, there was just ‘justice’’
Ken Clarke, Justice Secretary, November 15 2010. Here. ‘The Government strongly believe that access to justice is a hallmark of a civilised society. However, I believe that there is now a compelling case for going back to first principles in reforming legal aid. The current system bears very little resemblance to the one that was introduced in 1949. Legal aid has expanded, so much so that it is now one of the most expensive such systems in the world, costing the public purse more than £2 billion each year. It is now available for a very wide range of issues, including some that do not require any legal expertise to resolve. It cannot be right that the taxpayer is footing the bill for unnecessary court cases that would never have even reached the courtroom door, were it not for the fact that somebody else was paying.’
Shami Chakrabarti, director of Liberty: ‘Fundamental rights and freedoms and the rule of law are vital checks and balances in any civilised society – but meaningless without “access to justice” or the practical means of understanding and enforcing the law of the land. It’s always the poorest and most vulnerable who suffer most from abuse of power and need the law to protect and empower them. But how can people struggling with debt, family breakdown, and mountains of bureaucratic obstacles find a way through without help? Fair and equal treatment before the law depends upon the ability to translate and understand the language of the justice system. What would it feel like to face losing your children, income, job or anything of huge importance to you without any comprehension of whether the law protects you, let alone advice and representation to allow you to argue your case?’
You can read Shami’s response in full in her blog.
Andrew Dismore, labour MP for Hendon who heads up the ‘Access to Justice Action Group’: ‘It means three things: The ability of any citizen to get legal advice on whether or not they have a reasonable case in law – in other words, a case worth pursuing; secondly, if the advice is that there is a reasonable case, then the ability to pursue that case so far as it is necessary to obtain justice without fear of costs and at no cost risk; thirdly, that the court system should enable the parties to a case to obtain justice in a fair and a timely fashion. The Government’s Bill will smash all that.’ Does the existing system deliver access to justice? Yes, says Dismore. The ‘key’ to that is ‘no win, no fee’. The present system of conditional fee agreements was brought in by New Labour (under the Access to Justice Act 1999) which removed legal aid for most of civil litigation, including accident cases. The key to the effectiveness of ‘no win’ no fee’, Dismore argues is the ‘success fee’ and after the event insurance. The solicitor can charge a success fee to compensate for the risk of taking more difficult cases on ‘no win, no fee’ which ultimately cannot proceed or fail. ATE insurance protects the claimant from the costs of losing. The Coalition is proposing that success fees should be capped at 25% of part of the damages and that it will come out of any compensation and the claimant should pay the insurance premium. Currently, the losing side picks up the success fee as well as the insurance premium.’
Louise Christian, campaigning lawyer and co-founder of Christian Khan: ‘A society is only democratic and therefore civilised if everyone in it has broadly the same opportunities. Once access to the law becomes dependent on how much money you have, existing injustice will be compounded because not only are the poor and vulnerable denied opportunity, but they are also shut out of complaining about injustice. Societies which become more unfair also deny people the means of complaining about it. That is what I believe is happening now. A perfect legal aid system may be unachievable, but when I started my firm, Christian Khan, some twenty five years ago, it was possible to believe in legal aid as a crucial instrument of democracy and part of the welfare state. Now that is being destroyed at precisely the same time that austerity cuts and increases in student fees are making society much more unequal than it was then. It is no good Ken Clarke making bland statements of the obvious while he continues to be part of a government which is presiding over a massive attack on a civilised society.’
Andy Slaughter, Labour MP for Hammersmith and shadow justice Minister: ‘For the individual “access to justice” means offering a right of redress or a defence against more powerful people and organisations, including the state. For wider society, it is fundamental to maintaining and regulating the rule of law. It moderates the behaviour of those in power, improves decision making, and corrects abuses. There is no virtue in having laws that proscribe errant behaviour without the means to enforce them, and no point in rights in civil and criminal proceedings without the concomitant right to advice and representation. Yet these are under direct and sustained threat from the Coalition Government, both arms of which stood on a civil liberties platform. From advice on arrest to legal aid for victims of domestic violence to affordable representation for families like the Dowlers, access to justice is being curtailed, reversing the trend of the past 70 years.’
Michael Mansfield QC, human rights lawyer: ‘“Access to Justice” is a much broader concept than access to the courts and litigation. It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems.’
James Sandbach, policy director at Citizens Advice: ‘Access to justice has always been a disputed concept – what do we mean by “access”, let alone “justice”? Our courts, tribunals and other redress or dispute resolution systems have never been easy for users – nor are they meant to be, as they have to apply rules impartially in difficult circumstances such as relationship breakdown or criminal proceedings. But the post-war consensus has been that legal redress or legal defence should not be exclusive to any one section of society, and certainly not a commodity beyond the means of all but the wealthy, and so legal aid and Citizens Advice Bureaux were established to help those without the skills, income or sharp elbows to obtain fair redress when things go wrong. This is a basic tenet of the rule of law.’
Roger Smith, director of JUSTICE: ‘Frankly, I think the phrase is just best avoided by everybody. In its original concept it had quite a precise definition but taken away from its roots it is completely meaningless.’ What should replace it? The phrase Smith opts for prefer is ‘chiselled on the architrave of the US Supreme Court: equal justice under the law.’ ‘I take that to mean: be rich or be you poor, you’re entitled to a fair determination of our dispute.’
Phil Shiner, human rights lawyer and head of Public Interest Lawyer, and known for his work acting for detainees who allege that they were unlawfully detained, ill-treated, or killed by UK Forces in Iraq including Baha Mousa: “For me, ‘access to justice’ is a broad term. It must include maintaining a legal aid system that supports judicial review so as to give individuals the opportunity of challenging abuses of power. Otherwise, the power of the executive might go unchecked. “Access to justice” must include holding the state to account for egregious human rights violations and we can only do that with a properly funded civil legal aid system supporting judicial review.’ What would he say to those who might think that access to our justice system should not be extended to Iraqis. ‘Frankly, it would be unprintable. That’s tantamount to saying our armed forces and intelligence personnel abroad have complete impunity.’
Professor Richard Moorhead, deputy head of Cardiff Law School: ‘Access to justice means being treated fairly according to the law, and if you are not treated fairly being able to get appropriate redress. It does not just mean access to lawyers and courts. It means access to Ombudsmen, advice agencies and the police. It means public authorities behaving properly. It means everyone having some basic understanding of their rights. It means making law less complex and more intelligible.’
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award