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Access to Justice Essay A4

'There cannot be access to justice without both access to the law and...
Module

INTRODUCTION TO ENGLISH LEGAL SYSTEM (LS1528)

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Rebecca Isles
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INTRODUCTION

Access to justice is a fundamental principle that is central to the legal systems of countless western democracies, and for good reason. This principle asserts that fair treatment at the hands of the law and the guidance necessary for legal redress should be equally available to every member of society. Professor Moorhead highlights this idea when he states that access to justice means being, ‘.. fairly according to the law and if you are not treated fairly being able to get appropriate redress.’ 1 This principle is evidently a vital tool in the promotion of equal treatment for all. This is particularly true when it is considered that impartial legal treatment facilitates the application of other key rights upon citizens – as without an access to justice further rights cannot be fully accessed.

In an ideal world, key principles such as access to justice would be fully and successfully employed within society. However, effectively implementing the theory that such central constitutional principles rest on remains a complex challenge. In order for access to justice to be efficiently executed there must exist two key factors: access to the law and also diversity within the law. Facts suggest that there still exists significant issues in relation to the successful employment of these two components in England and Wales. There are numerous issues with countless features of the two components, the most notable being in relation to legal aid cuts and a lack of diversity among the judiciary. These unresolved issues are significantly hindering a comprehensive access to justice for citizens.

ACCESS TO THE LAW

A key component of access to the law is legal aid. Lord Neuberger emphasises the importance of an equal access to the law when he states that, ‘.. laws must be freely accessible: that means as available and as understandable as possible.’ 2  The vast number of laws present in the English legal system afford its citizens countless rights. These rights however are effectively useless if citizens lack the resources to exercise them. Consequently, the law must be made available to all – regardless of socio-economic background. There cannot be a proper access to the law if individuals in society are unable to afford redress, the

1 Steve Wilson, Helen Rutherford, ‘English Legal System’ (2018) 396. 2 Dr Mark Elliott, ‘Lord Neuberger on the rule of law and access to justice – choice excerpts’ (2013).

law must be, ‘.. available.. possible’ per Lord Neuberger. 3 Legal aid is a crucial vehicle for balancing the economic divide in society, a divide that causes an unequal ability to access legal proceedings. Legal aid attempts to level the economic playing field and prevent the availability of justice from being negatively dictated by income. This idea is highlighted by Andrew Walker QC, ‘... we [should not] expect people to deal with legal problems and disputes without expert legal help if they cannot afford it.’ 4 Legal aid is clearly vital as it aims to remove the obstacle of income when accessing the law. This should ultimately promote an overarchingly equal access to the law and therefore also to justice.

Unfortunately however, the legal aid system is fraught with issues that interfere with this purpose. Following an exponential growth in legal aid spending to over £2 billion in 2012, the government made a series of cuts to the legal aid budget. 5 As part of these reforms, a large number of different types of civil cases were excluded from being able to qualify for legal aid. These included clinical negligence and many types of family law cases to name a few. The government attempted to assure the public that despite this reduction in eligibility, resources would still be targeted to those in need. However, this decision was heavily criticised by the Law Society. They asserted that those requiring help would no longer be protected, as so many key case types were excluded. 6 This viewpoint is reinforced by Christina Blacklaws who says, ‘.. of thousands of people have become ineligible for legal aid as a result of ... cuts to the scope of legal aid, including victims of domestic abuse and people under threat of eviction.’ 7 It is clear that the government’s assertion that those in need of help would still be protected is not accurate. In reducing the number of cases that qualify for aid, the government has simultaneously prevented a large section of society from being able to afford legal redress in certain key areas. This is in direct contention with the principle of an equal access to the law and is subsequently detrimental to access to justice for citizens.

The fees available for lawyers involved in legal aid cases was also reduced under the same reforms. Lower available rates has significantly discouraged lawyers from working with legal aid cases. This is illustrated by the Law Society who assert that, ‘Some firms have closed and others have survived by shifting their

3 Ibid. 4 The Law Society, ‘Promoting diversity in the legal profession’ (2016). 5 Wilson & Rutherford (n1). 6 Ibid. 401. 7 The Law Society (n4).

Hale when she declares that, 'a diverse judiciary is an indispensable requirement of any democracy.’ 11 Due to the Lord Chancellor historically being solely responsible for appointing the judiciary, it was often pointed out that its members lacked any diversity in relation to race, gender or age. Malleson highlights this by saying that there is a, ‘.. lack of diversity in the make- up of the judiciary in England and Wales’. 12 Following such criticism the JAC (Judicial Appointments Commission) was established in order to better regulate the appointment of the judiciary. It has a statutory duty under the Constitutional Reform Act to promote diversity of individuals who are available to be selected for the judiciary. 13 Traditionally, only barristers have been eligible for senior judicial appointments, although now solicitors are entitled to apply for such appointments. This wider applicant pool was forecasted to increase diversity within the judiciary. Additionally, the changes made in the Tribunal, Courts and Enforcement Act 14 was said to have potential for improving diversity.

Despite these reforms, The JAC has been heavily criticised for not achieving a more diverse judiciary. It was reported that following the aforementioned changes, the first ten High Court judges appointed were former barristers, male and the majority privately educated. More worryingly, it was also reported that since the JAC had been established, the percentage of all judicial appointments awarded to women or ethnic minorities had in fact fallen. 15 Clearly these reforms have not been enough to encourage a wider diversity within the judiciary. This failure to promote diversity was highlighted by Jack Straw when he asserted that the JAC’s attempt to achieve diversity had, ‘not fulfilled expectations of creating a more diverse judiciary.’ 16 It becomes clear that a lack of diversity within the judiciary remains an issue when it is seen that in England and Wales in 2017, less than 7% of the judiciary identified as BME and only 28% as female. 17

Without a judiciary that is representative of society as a whole, individuals from different backgrounds will fail to experience an understanding from the courts of the issues they face and the justice they require. Furthermore, this blatant lack 11 Baroness Hale, ‘The Appointment and Removal of Judges: Independence and Diversity’ (International Association of Women Judges 8th Biennial Conference 3-7 May 2006 Sydney, Australia) 2. 12 13 Kate Malleson, ‘Rethinking the Merit Principle in Judicial Selection’ (2006). 14 Constitutional Reform Act 2005, s. 15 Tribunal, Courts and Enforcement Act 2007. 16 Clare Dyer, ‘First 10 high court judges under new diversity rules’ (2008). 17 BBC, ‘Straw: too many white male judges’ (2008). Judicial Statistics 2017.

of diversity inhibits the expansion of legal perspectives among the judiciary as there will be no varying ideas or experiences to draw on or learn from that would otherwise be provided by colleagues if the judiciary was drawn from a wide section of society.

CONCLUSION

There are fundamental issues with legal aid and diversity within the judiciary which are ultimately preventing access to justice within society. Structural obstacles like the issues with the legal aid system are interlinked with cultural obstacles such as a legal system staffed by a blatantly narrow section of society. Such failure by government to properly implement an effective legal aid system and an inability to ensure diversity within the judiciary won’t allow for the legal needs of society to be properly fulfilled and are ultimately acting to supress an equal access to justice.

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Access to Justice Essay A4

Module: INTRODUCTION TO ENGLISH LEGAL SYSTEM (LS1528)

94 Documents
Students shared 94 documents in this course

University: University of Aberdeen

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INTRODUCTION
Access to justice is a fundamental principle that is central to the legal systems of
countless western democracies, and for good reason. This principle asserts that
fair treatment at the hands of the law and the guidance necessary for legal
redress should be equally available to every member of society. Professor
Moorhead highlights this idea when he states that access to justice means being,
‘…treated fairly according to the law and if you are not treated fairly being able
to get appropriate redress.’1 This principle is evidently a vital tool in the
promotion of equal treatment for all. This is particularly true when it is
considered that impartial legal treatment facilitates the application of other key
rights upon citizens – as without an access to justice further rights cannot be
fully accessed.
In an ideal world, key principles such as access to justice would be fully and
successfully employed within society. However, effectively implementing the
theory that such central constitutional principles rest on remains a complex
challenge. In order for access to justice to be efficiently executed there must
exist two key factors: access to the law and also diversity within the law. Facts
suggest that there still exists significant issues in relation to the successful
employment of these two components in England and Wales. There are
numerous issues with countless features of the two components, the most
notable being in relation to legal aid cuts and a lack of diversity among the
judiciary. These unresolved issues are significantly hindering a comprehensive
access to justice for citizens.
ACCESS TO THE LAW
A key component of access to the law is legal aid. Lord Neuberger emphasises
the importance of an equal access to the law when he states that, ‘…the laws
must be freely accessible: that means as available and as understandable as
possible.’2 The vast number of laws present in the English legal system afford its
citizens countless rights. These rights however are effectively useless if citizens
lack the resources to exercise them. Consequently, the law must be made
available to all – regardless of socio-economic background. There cannot be a
proper access to the law if individuals in society are unable to afford redress, the
1 Steve Wilson, Helen Rutherford, ‘English Legal System’ (2018) 396.
2 Dr Mark Elliott, ‘Lord Neuberger on the rule of law and access to justice – choice excerpts’ (2013).

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