Access to justice is a fine concept. What does it mean in view of cuts to legal aid?

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Access to justice is a fine concept. What does it...?

Experts give their views on the effect on ordinary people in light of Ken Clarke's reforms to publicly funded law

Jon Robins

"I genuinely believe access to justice is the hallmark of a civilised society." It was with those words that the justice secretary, Ken Clarke, introduced his government's legal aid reforms last November. They are the most radical reforms to the scheme since it was introduced as a building block in the architecture of the postwar welfare state.

Clarke's plans amount to a demolition job of publicly funded law. His proposals are predicated on cutting £350m from a £2.1bn budget. So what might Clarke have done to the legal aid system if he were not of the genuine belief that access to justice is so important for our civilisation?

And what does "access to justice" mean, if not a fully funded legal aid system? Is it a noble aspiration that should lift our hearts, or is it a load of meaningless tosh peddled by politicians and lawyers to suit their own self-serving ends?

These are questions I have asked leading lawyers, thinkers and campaigners over the past week. Roger Smith, director of Justice, has spent a career at the access to justice frontline since starting work at Camden Law Centre in 1973. "Frankly, I think the phrase is just best avoided by everybody," says Smith. "In its original concept it had quite a precise definition but taken away from its roots it is completely meaningless."

He traces its origin to the Italian jurist Mauro Cappelletti.

In the 1970s, Cappelletti directed a research project funded by the Ford Foundation on "access to justice in modern societies" and which led to a four-volume series (called, you guessed it, Access to Justice). Cappelletti once said: "The right of effective 'access to justice' has emerged with the new social rights. Indeed, it is of paramount importance … Effective access to justice can be seen as the most basic requirement, the most basic human right, of a system which purports to guarantee legal rights."

In the UK, it has been regularly used and abused (Lord Woolf's 1996 report, New Labour's 1999 act etc). James Sandbach, policy officer at the Citizens Advice service, says it has always been "a disputed concept – what do we mean by 'access' let alone 'justice'?"

He says the postwar consensus has been that legal redress should not be exclusive to any section of society and "certainly not a commodity beyond the means of all but the wealthy".

He adds: "Legal aid and Citizens Advice Bureaux were established to help those without the skills, income or sharp elbows to obtain fair redress. This is a basic tenet of the rule of law."

Sandbach says we are moving away from that consensus and that the coalition's reforms will not only abolish much of the civil and family legal aid but restrict access to advice in police stations as well as expose claimants in civil cases to additional costs even if they win. "The prevailing philosophy is one of self-help and personal responsibility," he notes.

Professor Richard Moorhead, deputy head of Cardiff University's law school, makes the point that access to justice doesn't simply equate to legal aid. Access to justice means being "treated fairly according to the law and if you are not treated fairly being able to get appropriate redress".

"That doesn't just mean access to lawyers and courts. It means access to ombudsmen, advice agencies and the police law. It means public authorities behaving properly. It means everyone having some basic understanding of their rights. It means making law less complex and more intelligible," says Moorhead.

It's a point echoed by the lawyer Michael Mansfield QC. It is "a much broader concept than access to the courts and litigation", he says. "It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems."

Shami Chakrabarti, director of Liberty, reckons the concept struggles with a bit of an image problem. "Fundamental rights and freedoms and the rule of law are vital checks and balances in any civilised society – but meaningless without access to justice or the practical means of understanding and enforcing the law of the land," she says.

While we all love schools and hospitals, Chakrabarti notes, legal advice and representation doesn't seem important until you're really in trouble.

The law (like joy and grief) can be a great leveller, she says. "There is no longer a level playing field. Unlike many countries in the world no one checks your wallet in the emergency room. But when it comes to legal advice, the rich can pay, the not-so rich will struggle to find the means and under new reforms, even the poorest may be shut out from a legal aid system that we were once proud of."

So, finally, what of the justice secretary's proclamation? Smith claims to be quite heartened by Clarke's sweet words". "He seems to be endorsing something. I'm not quite sure what. But it leaves the door open. But are his proposals outrageous? Yes, they are."

The campaigning lawyer and co-founder of Christian Khan solicitors, Louise Christian has little patience with the justice secretary's declaration. A society is only democratic and, therefore, civilised if everyone has broadly the same opportunities, she argues. "When I started my firm some 25 years ago, it was possible to believe in legal aid as a crucial instrument of democracy and part of the welfare state," says Christian.

She adds that our system of publicly funded law was being destroyed at precisely the same time that austerity cuts and increases in student fees were making society much more unequal. "It is no good Ken Clarke making bland statements of the obvious while he continues to be part of a government which is presiding over a massive attack on a civilised society," she says.

Jon Robins is launching a website on Thursday called www.thejusticegap.com. It's about access to justice – whatever that means. You can read all the responses in full on the site

Source: The Guardian UK, Thursday 6 October 2011