To What Extent Does the English Legal System Offer Access to Justice for All?

To what extent does the English legal system offer access to justice for all? Should effective access to justice be an integral part of any fair legal system.

Introduction:

This essay will be split into two parts, firstly it will be analysing the extent to which the English legal system provides equal opportunity of access to justice for all; and secondly will answer whether access to justice should be fundamental to any fair legal system. This question will be answered by addressing what access to justice is, how it has changed over time, reasons for the changes, and should it be integral. This essay will conclude that the English legal system does not offer effective access to justice for all and that it should be an integral part of any fair legal system.

What is access to justice:

Access to justice denotes to the right of an individual to have effective access to the courts, so they have the means to settle legal disputes.[1] It is an essential principle of the rule of law, which involves a society that guarantees its people the right to a fair trial. This is where equality lies, binding everyone equally by entitling them to the laws of the land, one of which is having equal access to justice. Legal aid is part of access to justice, which aims to help those who cannot afford legal costs, to have the justice process available regardless of their income.[2] The Human Rights Act 1998[3] states that if one cannot afford legal representation, then their right to a fair trial is undermined, which is a key principle to a democratic society. This is protected under Article 6[4] of the Human Rights Act 1998. The intended result being a greater number of people having access to justice, increasing the extent to which the English Legal System offers access to justice for all and encompasses the rule of law.

 Today, legal aid is available for both civil and criminal cases, however, the opportunity of the areas of law that are funded by legal aid and those who are entitled to it has been continually changing over time. In both criminal and civil cases, the right to legal aid must be determined through various criteria. If an individual falls into the threshold needed, then they can be eligible for legal aid. However, over time these thresholds have continued to increase, making it progressively harder for certain individuals to obtain access to justice.

Evolution of access to justice:

In the 1900s, prior to the second world war, legal aid was provided through charitable donations to those who could not afford legal representation. This was unpredictable and erratic, rendering many without access to legal defences. The clear limitations of charitable donations providing legal aid were made clear by one of the founders of the Poor Man’s Layer movement, stating that such a system made the rule of law “anaemic attenuated make-believe which we flash in the eyes of the poor as justice.”[5] However, during and subsequent to World War II, steps were made to ensure a fairer society in the eyes of justice, whereby a welfare system was shaped under the Legal Advice and Assistance Act of 1949, establishing the unified system of legal aid.[6]  The scheme initially provided 80% of the population with a means-tested right to legal aid.[7] During the ensuing fifty years, a number of changes were made by Parliament and the executive government, but over-all, the system was deemed sufficient. For example, in the mid-1980s, 70% of the population were still eligible for legal aid, and there were relatively few exclusions of types of cases from the legal aid eligibility. However, by 1999 the civil legal aid was very restricted and had to be replaced by the Access to Justice Act 1999[8]. This deduced that claimants were able to access the courts by guaranteeing that they did not have to pay much in the way of costs if they lost and they recovered all their costs if they won.[9] This act ensured that every application was to be independently assessed by the government to enable only those who fit the requirements to be provided with legal aid. However, this act was based on the proposition that upon if the claimant wins, the defendant would not only pay for the claimant’s costs: the defendant would have to pay three times the claimant’s costs.[10] This system was replaced on 1^st April 2013,  by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012[11], pursuant to suggestions made by Lord Justice Jackson, a Court of Appeal judge due to the inherently questionable nature.[12]  While the Legal Aid, Sentencing and Punishment of Offenders Act 2012 mediated few issues with the Access to Justice Act 1999, it also confirmed cuts to public funding, making extensive changes to the legal aid system for family law as well as other areas of civil law in England, reducing the range of civil cases that legal aid would be eligible for. The decision to introduce significant cuts to the pre-existing system governing civil legal aid was encouraged by economic considerations with limited foresight for the potential negative and profound impacts on the protection of human rights in the UK.  The drawbacks such as limiting private family law legal aid to domestic violence between husbands and wives had had predictable consequences such as decreasing claims but increasing allegations of domestic violence as a way of qualifying for legal aid. Subsequently, fewer people can now access free legal aid and representation in a wide range of cases[13].

Who is effected:

Now, legal aid is simply not available for most cases.[14] This correlates to the English legal system developing a two-tier system of justice: one for the affluent and another for everyone else. The Lord Chief Justice stated that our system of justice is now unaffordable to the majority.[15]However, this discrepancy of equality before the law isn’t just about cuts to legal aid. Over the years there has been several increases to court and tribunal fees as well, making access to justice prohibitively expensive.[16] Despite widespread opposition, it has been confirmed that asylum and immigration tribunal fees will be increasing by 500%, and employment tribunal fees increasing, resulting in a huge drop in claims.[17] Court and tribunal closings, coupled with the increase cost and complexity of litigation and the shrinking of legal aid, continues to increase difficulty and expenses for many people to access justice.

Although these changes affect everyone, they predominantly affect those who have the highest need for recourse to the law.[18]  The changes are likely to disproportionately affect ethnic minorities, women and people with disabilities and mental health problems.[19] Legal aid should be one of the fundamental aspects of the UKs legal system, that allows those who are least able to afford or understand legal advice and access to justice a way of doing so. People living in poverty, who cannot afford to pay for legal advice and representation, will be most affected by the removal of pertinent areas of the law from the scope of legal aid. This problem is exaggerated as a result of poverty stricken areas having a higher rate of legal problems in the various categories that have been withdrawn from the scope of legal aid such as welfare benefits.[20] If our legal system cannot protect the most vulnerable people in society, it cannot be regarded just or to uphold the rule of law. It is hard not to conclude that we are compromising our justice system for austerity.

Why it should be integral:

Whilst it can be said that the government have managed to decrease the budget deficit through major savings to the civil legal aid budget, they are temporary savings, and have ignored the knock-on financial costs that could counterbalance or even eliminate these savings.[21] Without access to representation and advice, there will be pertinent issues such as: increased levels of homelessness, increased debt, and separation from families. This not only has substantial human costs to the individuals and their families, it also has a wider social cost, forcing services to take the increasing burden of supporting those whose problems have been allowed to mature due to the lack of aid. Parliamentary committees and other organisations have emphasised the damage of wider financial costs to essential services, caused by cuts to legal aid, such as added demands on the NHS as a result of reduced welfare advice.[22]

Looking more widely, access to legal advice and representation is central to the rule of law, and the rule of law coupled with democracy is one of the two essential aspects on which a fair society is based.  For any state to uphold the rule of law, and be a truly just and democratic society, protection of fundamental human rights must be adequately provided for. As stated by judge Thomas Bingham: “a state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law”.[23] If this is not present, the rule of law would becomes inconsequential.

Conclusion:

Although access to justice is still available, the extent to which it is available for all has narrowed drastically, with the disadvantaged and vulnerable being most affected by these times of austerity. Access to justice is an integral part of human rights protection in any state. It is a fundamental element that provides individuals with the right to have an efficient remedy, the right to fair trial and the right to equality before the law regardless of race, gender, disability or income. In England the provision of legal aid has necessarily acted as a foundation that encompassed the edifice of access to justice. Without efficient and available legal advice, people cannot effectively claim and enforce their rights, and society will eventually start to fragment. That is not merely just the increase between rich and poor, which leads to segregation and inequality amongst society if it gets too large. It is the destruction which arises when people lose faith in the legal system, and subsequently then lose faith in the rule of law, undermining society. The UK and its democratic history now faces the serious risk that the rule of law is taken for granted, consequently ignored, and is then lost completely, and only then does everyone realise how absolutely integral it was to society.

Bibliography:

• UK Parliament. (2018). The Commons Library and its research service. [online] Available at: https://www.parliament.uk/commons-library [Accessed 8 Dec. 2018].
• http://www.bbc.co.uk/newsbeat/article/33712373/legal-aid-what-is-it-and-why-all-the-fuss-about-it
• Human Rights Act 1998
• https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials/legal-aid
• FCG Gurney Chapman, Justice and the Poor in England (1926) p 21.
• http://www.younglegalaidlawyers.org/
• S. Hynes & J. Robin p21
• Access to Justice Act 1999
• https://www.supremecourt.uk/docs/speech-170703.pdf
• https://hsfnotes.com/litigation/jackson-reforms/conditional-fee-agreements-cfas-after-the-event-ate-insurance/
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• LASPO 2012, s.10(3).
• https://www.lawsociety.org.uk/support-services/advice/articles/legal-aid-changes-key-information-and-advice/
• https://www.opendemocracy.net/openjustice/charlotte-threipland/does-britain-still-uphold-rule-of-law
• https://www.lawgazette.co.uk/news/immigration-case-fees-hiked-by-up-to-500/5054895.fullarticle
• The Committee on Economic Social and Cultural Rights observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, UN Doc: E/C.12/GBR/CO/6, 14 July 2016. At paragraph 20
• https://www.amnesty.org/download/Documents/EUR4549362016ENGLISH.PDF
• Bar Council, “Changes to civil legal aid: Practical guidance for the bar”, page 12-13.
• National Audit Office, “Implementing Reforms to Legal Aid”, 17 November 2014. Report of the Low Commission on the future of advice and legal support “Tackling the advice deficit: A strategy for access to advice and legal support on social welfare law in England and Wales”, January 2014
• Advice Services Alliance and the Low Commission, “The Role of Advice Services in Health Outcomes: Evidence review and mapping study” 2015.
• Thomas Bingham, The Rule of Law, Allen Lane, 2010

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[1]  UK Parliament. (2018). The Commons Library and its research service. [online] Available at: https://www.parliament.uk/commons-library >Accessed 8 Dec. 2018

[2] http://www.bbc.co.uk/newsbeat/article/33712373/legal-aid-what-is-it-and-why-all-the-fuss-about-it > Accessed 8 Dec. 2018

[3] Human Rights Act 1998

[4] https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials/legal-aid > Accessed 10 Dec. 2018

[5] FCG Gurney Chapman, Justice and the Poor in England (1926) p 21.

[6] http://www.younglegalaidlawyers.org/ < Accessed 13 Dec. 2018

[7] S. Hynes & J. Robin p21

[8] Access to Justice Act 1999

[9]https://www.supremecourt.uk/docs/speech-170703.pdf  > Accessed 13 Dec. 2018

[10] https://hsfnotes.com/litigation/jackson-reforms/conditional-fee-agreements-cfas-after-the-event-ate-insurance/ < Accessed 9 Dec. 2018

[11] Legal Aid, Sentencing and Punishment of Offenders Act 2012

[12] Legal Aid, Sentencing and Punishment of Offenders Act 2012

[13] LASPO 2012, s.10(3).

[14] https://www.lawsociety.org.uk/support-services/advice/articles/legal-aid-changes-key-information-and-advice/ < Accessed 8 Dec. 2018

[15] https://www.opendemocracy.net/openjustice/charlotte-threipland/does-britain-still-uphold-rule-of-law , Accessed 12 Dec. 2018

[16] Amnesty International, ‘Cuts That Hurt, The impact of legal aid cut in England on access to justice’ (October 2016) > Accessesed 12 Dec. 2018

[17] https://www.lawgazette.co.uk/news/immigration-case-fees-hiked-by-up-to-500/5054895.fullarticle < Accessed 12Dec. 2018

[18] The Committee on Economic Social and Cultural Rights observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, UN Doc: E/C.12/GBR/CO/6, 14 July 2016. At paragraph 20

[19] https://www.amnesty.org/download/Documents/EUR4549362016ENGLISH.PDF < Accessed 8 Dec. 2018

[20] Bar Council, “Changes to civil legal aid: Practical guidance for the bar”, page 12-13.

[21] National Audit Office, “Implementing Reforms to Legal Aid”, 17 November 2014. Report of the Low Commission on the future of advice and legal support “Tackling the advice deficit: A strategy for access to advice and legal support on social welfare law in England and Wales”, January 2014.

[22] Advice Services Alliance and the Low Commission, “The Role of Advice Services in Health Outcomes: Evidence review and mapping study” 2015.

[23] Thomas Bingham, The Rule of Law, Allen Lane, 2010