Britain’s most senior judge, President of the Supreme Court Lord Neuberger, has warned that cuts to legal aid deny advice and representation to the very people who most need the protection of the courts.
Giving the annual Tom Sargant Memorial Lecture organised by legal campaign group Justice, Lord Neuberger took as his subject Justice in an Age of Austerity. He said that “the present economic crisis presents all those who are concerned about the rule of law with both problems and opportunities”. And the rule of law, he went on, should be the concern of not just lawyers and litigants, but of every citizen – after all, one aspect of the rule of law is that laws must be enforceable. If they are not, they may as well not exist.
Lord Neuberger identified two real problems in relation to justice in this country – accessibility to the law and accessibility to the courts.
Accessibility to the law
Lord Neuberger pointed out that: “Citizens cannot get justice if they cannot find out relatively easily what their rights and their duties are.”
After praising the fact that legislation is now freely available on the Internet, Lord Neuberger went on to criticise its ever-increasing complexity and quantity, pointing out that:
“Less and better legislation will not only mean better justice, as the law will be clearer and simpler. Because such a change will involve fewer statutes and statutory instruments, it will also reduce costs – an important factor in the age of austerity.”
Similarly, he welcomed the fact that case reports are now available on such sites as Bailii, but suggested that judges could do more to make their judgments more understandable. He certainly struck a chord with me when he said that reading some judgments one rather loses the will to live!
Accessibility to the courts
Lord Neuberger stated the obvious:
“The rule of law requires that any persons with a bona fide reasonable legal claim must have an effective means of having that claim considered, and, if it is justified, being satisfied, and that any persons facing a claim must have an effective means of defending themselves.”
Referring to the recent encouragement of mediation to resolve disputes, he warned of what he called the ‘insidious idea’ that civil litigation was not just the option of last resort, but that it was actually a bad thing. Whilst encouragement of mediation is justified, the right of access to the courts should not be denied, as mediation may not succeed, or the other party may not be prepared to mediate. In any event, without the court’s enforcement system, a negotiated or mediated settlement would be pointless.
One area where Lord Neuberger sees a threat to access is judicial review (‘JR’), in the light of the Government’s recent proposals focused on reducing costs and delays in judicial review applications. He said:
“…one must be very careful about any proposals whose aim is to cut down the right to JR. The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies.”
He then turned his attention to the issue of affordability, saying cuts to legal aid had led to serious problems:
“Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation. That is true whether one reduces the types of claim which qualify for legal aid or increases the stringency of the requirements of eligibility for legal aid. The recent changes have done both. If a person with a potential claim cannot get legal aid, there are two possible consequences. The first is that the claim is dropped: that is a rank denial of justice and a blot on the rule of law. The second is that the claim is pursued, in which case it will be pursued inefficiently, and will take up much more of the court staffs’ time and of the judge’s time in and out of court. So that it means greater costs for the court system, and delay for other litigants.”
Of course, he is not the first lawyer to turn a spotlight onto these issues, and I’m sure he will not be the last. Whether the Government is listening, however, is a different matter.
It has never been easy to ensure access to justice, the President concluded, and the current age of austerity had made the issue still harder. All he could do was make proposals in the hope they would produce an improvement, “although the law of unintended consequences suggests that any improvement may turn out to be very different from the original proposal”.