It is said that access to justice is the prerequisite of a society wishing to establish and instill the rule of law.
According to Lord Neuberger of Abbotsbury, President of the Supreme Court: ‘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…
Therefore access to court (a time-honoured system of justice) equates to the maintenance of an orderly and fair system.
If access – and the equality of access – is met – the growth of a healthy cultural structure will be fostered. Speaking in the House of Commons for the presentation of the Legal Aid and Advice Bill 1948, Lieut.-Colonel Lipton echoed the necessity of a legal aid capability and the societal benefits it would yield:‘It will help to increase public respect for the law, which in itself is a very desirable thing.’
Yet since the inception of publicly subsidised legal aid, financial sustainability has been a genuine issue for regard. In 2009 publishers of The Justice Gap gave a modern critique on the matter stating ‘spending restraints limited the service from the start’ – however, it is a matter of concern that this assertion was emphasized some fifty years prior.
Sachs’ early analysis of the Legal Aid and Advice Act 1959 provides apt illustration: ‘The situation was profoundly changed owing to economic decisions taken by the Government upon devaluation.’
Obstacles which existed during the implementation of the Legal Aid and Advice Act 1949 may supply credible context for some of the problems still prevalent today. One might only need to research the witness statement of Sir Nicholas Macpherson to the Chilcot Inquiry regarding HM Treasury involvement in Iraq to draw this inference.
Once again observation and scrutiny of past events reveal not only an undeniable link to the present circumstance but also an intrinsic one.
With regard to HM Treasury as a debtor post war, in 1949 at a House of Commons War Debt Debate Harold Davis said: ‘Thus we have found a method of passing the burdens of wars past, present and future on to the as yet unborn’.
The pre-eminent 2010 spending review conducted by HM Treasury initiated new legal aid reforms. It objectified desires for a ‘private sector led recovery’. Writing in the Public Law Journal, Tony Prosser noted that this constitutes ‘a major rethinking of the role of the state’. In essence, this is Government’s rejection of responsibility. The guise of ‘the big society’ was employed to fill the breach stemming from the remnants of the state’s duty of care.
The Ministry of Justice (sponsor of legal aid) was tasked with making ‘savings of 23%’ from their budget.
In his report for the Law Society of England and Wales , Dr Graham Cookson explains the mathematics:‘Legal aid expenditure represents approximately 25 percent of the total MoJ budget’.
Whether legal aid is synonymous with the welfare state is a moot point; arguably it is – but considerations of ‘dependency’ raised in a review also seeking to curtail public funding, are disquieting.
Legal aid is, or should be, a right of those seeking redress for grievances. Notwithstanding, The Government’s ( and particularly former Secretary of State for Justice and Lord Chancellor Kenneth Clarke’s) ‘commitment to reducing the fiscal deficit’, it is wrong to permit depreciation of something that enforces legal rights.
It contradicts the rule of law Consequent upon Lord Justice Jackson’s 2010 review of civil litigation costs, Government enacted The Legal Aid Sentencing and Punishment of Offenders, 2012.
This dramatically reduced the scope/eligibility of civil law public funding; denying justice to those who need it most – the poorest members of society.
Professor Gen said: ‘civil justice has important social functions which go far beyond settling disputes between individuals.’
This is true, civil rules underpin society, including everyday transactions and normative acceptabilities.
Without their enforcement, people could become disillusioned by the apparent redundancies. Plausibly, it is arbitrary to have rights/duties effectively enjoyed only by those of greater means.
The Regulatory Policy Institutes paper titled as Understanding the economic rationale for legal services regulation, highlights the possible effects of exclusivity.
‘If the legal market is structured in such a way so as to only provide access to legal services to specific groups (ie: the rich or educated), this may inadvertently have the effect of causing large numbers of members of society to feel disenfranchised or excluded from the legal process’.
Laurel S. Terry agrees, as evinced by his work commissioned by the Legal Services Board. ‘Since some of the prior economic literature on the legal profession arguably fails to take into account the effect of proposals on public confidence in the integrity of the legal system and the “rule of law”, this approach used in the Decker-Yarrow paper was particularly welcome.’
Marginalisation of funding constitutes a frightful divergence away from its established foundations
It is also perversely opposite to LJ Jackson’s own stance: ‘I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas’.
Referring to one of the “key areas’, Prof Margot Brazier is insightful: ‘It is highly likely that seeking compensation for clinical negligence will become much more difficult and numbers of claims will fall’
In accordance with Legal Aid, Sentencing and Punishment of Offenders Act 2012, sch 1 pt (1) s23(1) public funding is now available only in respect of ‘clinical negligence which caused a neurological injury’ to a foetus in-utero or to an infant- conditional upon a postnatal time limitation.
Curbing expenditure through ‘modernisation’ is not a novel concept; however the present climate, is extraordinary. Conflict has emerged between facilitating justice and belt tightening.
The Lord Chancellor’s Department’s Green Paper ‘Legal aid Targeting Need’ presented in 1995 clearly evidences the conflicts of interests.
‘No civilized society can claim to provide access to justice if the cost is beyond the reach of individuals, or corporations, or even the state’.
Introducing market philosophies has attempted to stifle consternation about funding deficiencies. This resulted in the expansion and recoverability of conditional fee agreements, by way of the Access to Justice Act 1999. It was heralded as a success and many who formerly could not afford to seek litigation for the enforcement of their rights were now equipped by statute to undertake arrangements to achieve the goal.
At a seminar presented to the World Bank Legal Institutions Thematic Group civil servant Peter Harriss said: …the UK Government is now turning increasingly toward market mechanisms to meet the demand for justice.’
However despite Kenneth Clarke’s acknowledgment in the Government’s response to LJ Jackson’s recommendations that these agreements are ‘still particularly used in personal injury claims, including clinical negligence’ , legislation dissolved the essence of this type of litigation whilst virtually eliminating funding for this area of law. ‘Success’ fees and after- the event insurance (which covers costs should claims fail) have been by recommendation, removed from the cost ambit of recoverability.
Dr Heywood argues in the Journal of Professional Negligence ‘… this does nothing to promote the notion of access to justice’. These expenses are now met by successful parties’ damages. In mitigation, and as secured by the case Simmons v Castle , general damages have been increased by ‘10%’
Government now advocates damage – based agreements, where representation is remunerated by percentages of the compensation. This is embodied in the The Damages-Based Agreement Regulation 2013.
Formerly this was contrary to public policy , under the the Criminal Law Act 1967; being considered an aggravated form of maintenance. In consideration of the Factortame case this is remarkable! Lord Phillips MR presiding said ‘The Minister contends that this agreement was champertous and, in consequence unenforceable…’
The reforms present ramifications to substantive laws and their application to, and by, the individual – conversely it affects the courts’ procedural right/duty to determine cases.
Reductions of scope/eligibility throws up a wide range of undesirable implications, including as Sachs intimates:‘…a sign that the rule of law and the liberty of the subject were alike being whittled away.’
It also puts the Judiciary into invidious situations detrimental to relations with the legislature. The high court judgment regarding a proposed residency test indicate this.
Through amendments to the Legal Aid Sentencing and Punishment of Offenders Act embodied by secondary legislation Government sought exclusion of those not ‘lawfully resident in the United Kingdom’ from the procurement of legal aid – including persons legally residing for less than 12 months.
This presented catastrophic implications to the rule of law. It defies international obligations under the European Convention on Human Rights, namely art 6.1 which states that ‘In determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing…’ This would in essence breach the Convention which incidentally being party by ratification is a prerequisite for being a member state aligned with the Council of Europe.
Finding the test would exceed the Act’s ‘primary objective’ (targeting need), the court unanimously held the proposal to be ‘ultra vires and unlawful’. Unfortunately on appeal by the Lord Chancellor this logical and ‘Rule of Law’ endorsing judgment was reversed by the Court of Appeal. This is subject to appeal
Vernon Bogdanor’s observations make sense in his critique of the functions of state : ‘What is clear is that there is little consensus between Government and the judges when it comes to the rights of unpopular minorities.’
Government contended provision enshrined in legislation would counter obligatory issues. Current Secretary of State for Justice and Lord Chancellor Chris Grayling asserted: ‘Under LASPO, 31 there is a power for legal aid to be granted in exceptional circumstances…’.
Yet recorded evidence by the Ministry of Justice through its own Legal Aid Exceptional Case Funding Application and Determination Statistics indicates that only ‘4%’ of applications are granted.
Research demonstrates that victims of domestic violence are also detrimentally affected. Investigation and consultation conducted and surveyed by the Rights of Women organization paints a truly bleak picture with their findings. ‘60.5% of respondents took no action in relation to their family law problem as a result of not being able to apply for legal aid.’
A consequence of funding ineligibility is self-representation. The Family Division has witnessed particularly egregious conflicts.
In the case R: H v L, R (2006) ECHC 3099 (Fam) Mr Justice Wood highlighted the severity of litigants in person cross examining witnesses – where under circumstance pertinent to the facts were h/she in a criminal court, they would be statutorily prohibited from doing so.
Sir Justice Munby, President of the Family Division of the High Court reiterated this danger in relation to financial restraints concerning attendances of experts at court. His ratio in Q v Q; Re B (A Child), Re C (A Child)  EWFC 31 demonstrates the gravity of what is actually occurring as a result of funding inefficiency. ‘I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape.’
Advocating reform in the Personal Injury Law Journal, Harry Lambert said, ‘If personal cross-examination is so repugnant that it is prohibited where the defendant might be the perpetrator, the point holds fortiori where he or she is the perpetrator.’
Ironically, without representation, circumstances proclaimed by Lord Chancellor ( Lord Sankey ) in the Poor Prisoners Defence Bill 1930 become reality.
‘If a point of law arises he is quite unable to deal with it or discuss it.’
The decline in public funding has, under any system of evaluation, been detrimental and arguably, reduction of scope, eligibility and the introduction of privatised market economics is ultimately synonymous with the welfare state’s demise.
Certainly similarities can be drawn between the current crisis and problems presenting at the inception of legal aid – but it remains a stark and blunt fact that only a robust public funding programme will ensure the system of accessibility envisioned by the Rushcliffe Committee.
Hal Brinton is an academic lawyer studying at the University of Leeds. He is the co-author of the International Law Magazine New Jurist and is a contributor to the WestLaw Legal Insight Encyclopedia. Hal Began his legal career at Ruskin College Oxford which is a model for labour colleges around the world. Coming from a political background and influenced by Ruskin’s long and varied history he committed himself to social justice and equality policy. His current research interests are, Human Rights, Feminist Jurisprudence, Legal Aid Reform, Anti Discrimination Law, Environmental Law and the Law of Obligations. He can be contacted at firstname.lastname@example.org