If you took a poll of people on the street and asked them if access to justice was important, the overwhelming majority would probably say yes. But ‘access to justice’ is one of those ideals that we take as a given, like democracy or freedom of expression, without really thinking about what it means in practice and how it should be implemented.
One of the most visible aspects of the right to access justice is the court system. This could vary from getting compensation from the person who crashed into you while driving, to holding the government to account through judicial review. Without access to the courts it is often difficult or impossible to ensure that your rights are being upheld.
However, the right to access the courts does not just include a literal right to bring a case. Access remains an issue if you are unable to understand the court system or adequately represent yourself during your court case. This is why the right to access the courts is often indivisible from the right to legal representation.
Self-represented litigants are increasingly becoming an issue in a number of jurisdictions, most notably England & Wales, due to cuts in legal aid. There is now an ever-increasing gap between those at the very lowest end of the rung who qualify for legal aid and those who can afford to pay for private legal representation.
A lack of legal representation might be seen as a miscarriage of justice. If a person does not have access to a lawyer, the court system can be hugely intimidating. Legal language such as ‘obtaining leave of court’ or ‘issuing a notice of motion’ means nothing to the average person and it doesn’t tell them what is really required of them. Trying to figure out how to initiate a case in the first instance can seem like a mammoth task in and of itself before the process even really begins.
Then the litigant is required to file certain types of evidence, to submit arguments based on legal precedent and know what relief they are seeking. If they manage to access previous legal decisions they will encounter numerous latin phrases such as ‘prima facie’ and ‘res ipsa loquitor’ as well as phrases in English such as ‘unconscionability’ and ‘standing’ which have specific legal meanings.
It is unfortunate, but our common-law adversarial system is heavily based on two traditions which make it difficult for the average person to win their case without a competent lawyer. The first is the fact that it relies on lawyers to present all relevant evidence and arguments. The judge can only consider the evidence they have been presented with. No matter how much a judge may try to support a particular self-represented litigant, the judge cannot make arguments for them. Additionally, the common law system is heavily reliant on precedent – following previous decisions made by the court before. If you cannot present a judgment which endorses your argument, it is very unlikely that the court will decide in your favour.
Without legal training it is very likely that a person could have a good case but lose because the case turns on a technical decision, such as the interpretation of a specific provision of legislation, or that they could not find the case which best supports their argument.
Something as simple as not knowing how to refer to the judge or the format of a trial can be incredibly unnerving and make someone feel as if they’re starting from behind.
In order to provide a person with a fair trial and the ability to protect their liberty and their good name the person needs competent legal representation, which we currently provide through criminal legal aid where a person cannot otherwise afford it. Without it is very hard for a person to understand and navigate the legal system. An innocent person could be sent to jail for the crime of not being able to afford a lawyer.
But even if the person is not innocent, the legal system should be above reproach in order to maintain its legitimacy in the eyes of the public. Our justice system rests not only on the threat of punishment, but by the general population buying into it. Without faith in the system it risks falling apart.
If you believe in human rights than surely you believe human rights belong to everybody, not just to people we deem as worthy of them. If we are going to take away a person’s right such as their right to liberty then we need to do so only after serious deliberation, after we have decided, beyond reasonable doubt, that they seriously breached the law.
By providing everyone with a competent lawyer, and allowing for an appeal where their legal representation was flawed, we create a system which minimises the possibility that a person was sent to jail for the sole reason that the State created an unfair playing field.
By comparison, providing civil legal aid should not seem controversial at all. These people are not charged with a crime. Instead they may face losing their homes through bank repossession, domestic violence from an intimate partner, refusal of social welfare based on unfair decisions, inability to see their children or even something as basic as being unable to divorce their partner because they lack to resources to afford legal representation. Surely there could be no principled objections to providing these people with access to legal aid?
While most countries accept that criminal legal aid is required in order to ensure a fair trial, civil legal aid is not given the same focus. Of those countries which have State-funded civil legal aid, funding is usually incredibly limited and a number of countries have imposed upfront contribution fees which can deter those on a low-income.
Without proper legal representation a person will lose something important to them, and this also often has the effect of reinforcing poverty. A person can be thrown into homelessness, lose their job unfairly, be unable to access social welfare or be thrown more deeply into debt because they could not understand and take advantage of the legal process and it’s ability to uphold and defend their rights.
It also makes financial sense for the State to provide civil legal aid. A study from Citizen’s Advice in the UK found that:
- For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34.
- For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98.
- For every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80.
- For every £1 of legal aid expenditure on employment advice, the state potentially saves £7.13.
This is as a result of the saving to public services and the courts system and the gains in work productivity and good health outcomes where potentially serious situations are diverted at an early stage. Yet we are seeing cuts to civil legal aid budgets the world over.
Australian Prime Minister Tony Abbott says he is ‘infuriated’ that people felt entitled to use tax-payer funding to challenge public policy. UK Justice Secretary Chris Grayling asks why should overseas nationals be entitled to legal aid when they’ve never lived in Britain? Irish policitians continually ask the Minister for Justice why repeat criminal offenders are entitled to free legal aid.
Politicians do a very good job of creating an ‘us versus them’ narrative. Why should honest, hardworking tax-payers have to pay for criminals and scroungers?
One of the fundamental tenets of the rule of law is that laws apply to everyone equally and everyone has equal access to justice. Many different people, from Churchill to Truman and Mahatma Ghandi, have restated the belief that you judge a society by how it treats its disfavoured people. The challenge to access to justice is insidious – it chips away at the right slowly by disenfranchising unpopular groups like prisoners and immigrants.
We say that access to justice is important to us and important to society, but we often don’t put our money where our mouth is, or decide that access to justice is good for some but not for others. We have to decide that access to justice is a right, applicable to everyone, otherwise it loses its meaning.