Cutting Legal Costs... at the Cost of Justice?
Access to justice is a fundamental principle of the English legal system. As Lord Hewart CJ declared in R v Sussex Justices, ex p McCarthy (1923) “not only must justice be done, it must also be seen to be done”. Justice is firmly embedded within the UK constitution and the legal system aims to be fair, equitable and, primarily, accessible; yet the jury is out on what true access to justice looks like and whether such a concept, in practice, exists.
In its simplest terms, as set out by the Government, the legal system must uphold fairness in society, both for businesses and individuals. Such a system exists to resolve disputes, provide a framework for legal undertakings, make amends for harm done to victims, rehabilitate offenders, and prevent future injustice (source).
It is clear, then, that in order to have a legal system that operates for all, it must be accessible to all. Lord Bingham dictated a number of principles of the rule of law, the primary principle being that the law should be accessible, clear, precise and open to public scrutiny (source).
Furthermore, whilst the UK remains a member of the European Union (EU), the Human Rights Act (HRA) 1998 - which was enshrined in UK law to underpin fundamental human rights set out in the European Convention on Human Rights (ECHR) - dictates a person’s right to a fair trial under article 6, whereby an individual is able to access justice with an understanding of the case against them and has an opportunity to argue their side in an impartial forum.
It is not difficult to see the importance of having an accessible justice system. Nevertheless, the reality is that ordinary people are finding it more and more difficult to access justice due to financial constraints, and the right of accessibility and affordability is being substantially threatened (source).
Legal aid, a concept developed to help those who have difficulties in accessing the justice system, was first established after the Second World War and it has been a major part of our society ever since. Tim Dolton QC, as chairman of the Bar Council in 2008, said the UK should be proud of its legal aid service for providing “justice for the most vulnerable and needy in our society” (Slapper, G. and Kelly, D., The English Legal System, (2015), p. 669). Yet it is apparent that, in practice, the gap is widening between those who can access justice and those who are left in need, which poses the question: is this still a service to be proud of?
The Access to Justice Act 1999 introduced a new legal aid system to make provisions for rights to supply legal services and court procedures. The Magee Review in 2009 also looked at further reforms allowing for a separate legal aid system for criminal and civil matters. In addition to this, the Ministry of Justice announced a review of the way in which the £2 billion legal aid budget was being delivered.
The Legal Aid, Sentencing and Punishment of the Offenders Act (LASPO) 2012 underpinned the new ways of thinking, introducing a number of reforms including restricting funding through eligibility tests. Though the purported ‘success’ of the scheme rests in the reduction of costs spent on access to legal services, it is difficult to see where the ‘success’ is measured. Fundamentally, the Act has denied a multitude of individuals the ability to access justice, and has created a ‘two-tier’ justice system as described in a recent Amnesty International report. Alice Wyss, a researcher at Amnesty International UK, said:
“Cuts to legal aid imposed by this government have decimated access to justice and left thousands of the most vulnerable without essential legal advice and support. We are in danger of creating a two-tier civil justice system, open to those who can afford it, but increasingly closed to the poorest and most in need of its protection.”
Amnesty International are not the only critics of such reforms by the Government. In 2014, judges ruled in the case of R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others 2014 that individuals appealing against deportation had been unlawfully denied legal aid under “too-restrictive Government guidelines”.
Under Government schemes, legal aid can be granted (in its broadest sense, though this is restricted further depending on civil or criminal matters) if an individual meets certain criterion. Taken from the Government website, this includes: homelessness, protecting yourself or your child from abuse, domestic violence, family mediation, being arrested, charged or questioned by the police, and seeking asylum. There is also exceptional case funding granted for matters falling under the ECHR.
Despite this, figures from last year relating to civil matters indicate that access to civil legal aid has fallen by more than half. Worse still, since the introduction of LASPO 2012, the number of civil cases granted funding for representation has dropped by 62% and the budget for criminal legal aid has been cut by £215m (source).
In addition to this, conditional fee (‘no win, no fee’) arrangements can be said to deny access to justice further, in that it may become common practice for legal professionals to take on a client on the basis of success and ‘high price cases’ instead of in the interests of justice (Slapper, G., and Kelly, D., op. cit.).
It is evident that the current legal aid climate has substantially impaired the accessibility to the legal system and the operation of this framework is in need of further reform. Cutting the eligibility for legal funding is inevitably undertaken at the cost of justice and, in doing so, many are denied the fairness and equity they are entitled to enjoy.