Critical Analysis of Mechanisms Providing Access to Justice

INTRODUCTION

The rule of law (ROL) is a core
characteristic of the UK, as a liberal democracy. Enshrining varying concepts, the
ROL requires embodiment in several mechanisms. Both criminal and civil courts
provide avenues for judicial review and tribunals, through which the ROL is
able to thrive.

Access to these institutions is fundamental;
if the avenues of attainment are clogged, the ROL would not be able to
function. The importance of access to justice (ATJ) in
achieving the ROL will be explored. Unguarded ATJ is paramount, to impede this
access would be to contrast the values of the legal system.

THE RULE OF LAW

Rooted in political thought and notions of constitutionalism[1] the ROL has existed and evolved in systems of governance for centuries.[2] Noted inA.V Dicey’s, the ‘Law of the Constitution’ it is a ‘fundamental doctrine’[3] by which every individual must obey and submit to.[4]

Comprised of several values; legal certainty,
fairness, equality, and due process.[5]
These values enable a system to be democratic while also ensuring the ROL and
wider scope of justice is adhered to.[6]
Lord Neuberger, noted in 2013 under the ROL, “any persons with a…reasonable legal claim must have an effective
means of having that claim considered …” ATJ, is therefore important as a
means of ensuring the ROL is met. While the virtues of a rule can be offered
praise, without free and open access, their ambitions are not met, and it can
be said the ROL would be reduced to worthlessness.[7]  Lord Neuberger said that ATJ has several components, the most vital of
which will be explored; accessible courts; an effective legal system and
process and affordable justice.[8]

CIVIL SYSTEM

The greatest attempts at improving ATJ came
in the Woolf reforms.[9]
These reforms, given the ineffective and costly system, which were thought to
be a direct hindrance on people seeking justice.[10]
The former system was said to be expensive, delayed, incomprehensible to the
lay person and so actively ensured that for most, ATJ in civil proceedings was unattainable.[11]

Woolf reforms enacted a set of civil
procedural rules[12],
which sought to redress the above and cause fairness. Lord Woolf noted that a
system which ensured equality between parties, placed no unreasonable financial
burdens, endeavored to ensure cases were heard swiftly, and by competent legal
professionals was fundamental to the ROL.[13]  

Changes included judicial case management, ADR prioritization and obligation
and a push towards settlements.[14]
Another attempt was to simplify the system, producing a singular guiding
tool for both county and high court claims.[15]

The reforms, despite ambition, have continued
to hinder a parties’ ability to access justice. Zander[16]being a critic, notes while they have
transformed the system, they simply reallocated the most objectionable features
which hindered ATJ.[17]

Further, Malleson[18]
notes that judicial management, pre-trial hearings and disclosure have created
a front-loaded costs system, which has significant impact on a person’s ability
to pursue justice. A report in 2001 by the Law Society noted that 46% of
respondents thought costs were a significant hindrance[19].

Lord Justice May noted costs are “the biggest problem which could endanger the success of the CPR” and the ATJ. Noting that a system which was inaccessible to many, was a system not based on universality but on exclusionary bias. Costs were under the old system a blockade to justice and they remain so.

TRIBUNALS

The tribunal service ensures individuals have sufficient ATJ. Tribunals are a mechanism to resolve disputes which occur privately or between citizens and the state. 

Tribunals have been recognised as a
fundamental mechanism to ATJ. Sir Oliver forwarded recommendations which aided
the tribunal system in its execution of fair and impartial justice.[20] The
system required consistent reform to ensure its original aims remained.

Ensuring the process was effective, Sir
Andrew Leggatt undertook further examination of tribunals to determine whether
fair, timely, proportionate, and active provisions were in place for handling
disputes.[21]
The review required the fundamentals of ECHR were incorporated into the
mechanisms.

The Leggatt
report found that tribunals had become inaccessible, user unfriendly and open
to impartiality and bias administration.[22]
All of which defeated the inherent aims of the service as an outlet for
citizens.

The report found tribunals were dependent on funding,
leaving the potential for bias.[23]
The ROL notes that no judge should be an adjudicator of his own case, here Leggatt
sought reform.

The reforms resulted in a streamlining of service
ensuring uninhibited ATJ.  Following
Leggatt, tribunals continue holding many valuable assets in aiding the justice
system. Cost effective as each party pays their own costs and do not face
having costs awarded against them in the event that they lose.[24]
Due to simple procedures, they do not require legal representation and allow
claimants to represent themselves.[25]
This ease of process lessens fears many claimants have and makes the system
approachable and more accessible.[26] 

Tribunals deal with over a million cases per
annum, without them, the court system would be burdened. Tribunals provide an accessible
and practical solution for citizens.

JUDICIAL REVIEW

Judicial Review (JR) is another means for ATJ that allows
a private citizen the opportunity to hold accountable persons in authority.[27]
JR applications are regulated by the Rules of the Supreme Court^[28], which
require an application to be based upon one of three points; illegality,
irrationality or procedural impropriety.[29]
Issues of illegality relate to authoritative bodies; local[30]
or centrally[31], acting ultra vires, and goes to the very heart
of ROL in that no-man, or body, despite their status is above the law.[32]  The second reason irrationality, gave rise to
‘Wednesbury unreasonableness.’^[33].
Where a decision is as ‘so unreasonable
that no reasonable authority could ever have come to it[34]‘,
the court will intervene, this extends to decisions made without proper
consideration of the facts[35],
ensuring decisions are made after open presentation of facts; it embodies
transparent justice.[36]
The final means of a JR application is procedural impropriety, this relates to
adverse decisions arising from failures to observe procedure laid down by
statute.

As can be
seen, JR provides an ATJ which can aid in the fulfillment of ROL principles.

However, JR
suffers disadvantages.  Firstly, JR is
limited in scope and only available against persons or bodies which perform
public functions. Decisions made which are potentially judicially reviewable in
nature, but not subject to its jurisdiction cannot be pursued and the aggrieved
must seek recourse through the costly avenues of private law.[37]

Another
criticism is the requirement of standing in that only those with locus standi, can make an application.
The individual must have a special interest in the issue. While standing can in
certain situations be regarded in a more liberal approach, the party still must
have a ‘real, reasonable, recognised and
related concern’[38]social campaigners may not easily pursue
a case on behalf of a person who lacks the financial ability.

Finally, JR
can cost between £6,000 to £50,000.[39]  Combined with the requirement that a JR
application must be made within 6 weeks to 3 months, costs and ability to raise
capital limit many from seeking redress.[40]

LEGAL AID

One of the most imperative avenues which enables ATJ is legal aid. Legal
aid is a mechanism affording ATJ in its most literal sense. It was designed to
make justice available regardless of income.[41]
It is a system which ensures the key principles of a democratic society are
met; all are equal before the law and possess the equal rights and opportunities.
The ECHR sets out obligations of government for provisions of legal aid in
criminal justice.[42]
Despite this, legal aid has come under criticism.[43]

The Legal Aid,
Sentencing and Punishment of Offenders Act (LASPO) 2012 cut approximately £350m
a year from the legal aid budget ensuring that only in certain exceptions would
legal aid be provided.[44]
Cases concerning divorce, housing, immigration and social security can qualify
for legal aid when classified by a narrow criterion. LASPO has certainly
hindered ATJ. 

It could be argued that legal aid cuts are in direct contravention of wider international obligations in ensuring ATJ, given that at an international level, it has been cited as a facilitative right.[45] However, the weak stance of the ECHR, in Artico[46] and Quranta[47], have ensured that the UK’s approach to legal aid surpassed the benchmark of lawfulness.  The system in action is based on means of wider interests of justice. When correlation is lacking, ATJ will be governed by an individual’s ability to fund it.[48] Some argue this is a despicable diversion from the ROL.

Concerning civil law, despite Article 6(1) implying a right to free legal assistance in certain civil cases, cuts have continued.[49] The Parliamentary Justice Committee noted that under LASPO, 65% of all community legal advice centers have been closed.[50] A Rights of Women survey found that people had difficulty in obtaining a legal aid solicitor in family cases[51] and the Justice Select Committee noted women eligible for legal aid through the domestic violence gateway were unable to access legal aid lawyers locally and their ATJ was impeded[52].

Cuts in legal aid
were designed to divert people from combative litigation and towards ADR;
however, ATJ is a hurdle many do not attempt. The ROL requires access to a
competent legal profession as a means of assuring justice, unfortunately, legal
aid cuts have crippled this and ensured that justice is a pursuit for the
wealthy.[53]

CONCLUSION

The UK system
of governance provides a comprehensive system where an individual can access
justice and seek remedy for grievances. 
While those mechanisms exist, uninhibited access can be said to be a
privilege of the wealthy. Despite the system providing channels of resolution, it
does so at a cost. Cuts in legal aid, severely inhibit ATJ. This burden on the
system, draws attention away from positive elements in practice today; notably
the tribunal system, which is a pillar of hope.

The ROL
requires consistent commitment by governments for its potential to be
fulfilled. Until the UK government provides that commitment, it is likely ATJ
may continue to be an unobtainable goal for many.

BIBLIOGRAPHY

INTERNATIONAL LEGISLATION

• The European Convention of Human Rights 1950

UK LEGISLATION

• The Civil Procedure Rule 1999
• The Supreme Court Rules 2009
• The Tribunals and Enquires Act 1958
• The Tribunals and Enquiries Act 1971
• The Tribunals and Enquiries Act 1992

INTERNATIONAL CASES

• Airey v. Ireland (App No. 6289/73) [1979]
• Artico v. Italy (App No. 6694/74) A/37 [1980]
• Quaranta v. Switzerland (App No. 12744/87) [1991]

UK CASES

• Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
• Bromley Council v Greater London Council [1983] AC 768
• Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374
• Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374, para. 410
• Entick v Carrington (1765) 19 St Tr 1030
• IRC v National Federation of Self Employed and Small Business [1982] AC 617, para. 630
• Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23
• R (on the application of) v Lord Chancellor [2017] UKSC 51
• R v Altringham Justices ex parte Pennington [1975] QB 549
• R v Paddington, Valuation Officer, Ex Parte Peachey Property Corporation [1966] 1 QB 380, para. 401
• R v Secretary of State for the Home Department Ex parte Fire Brigades Union [1995] 2 AC 513
• Strictland v Hayes Borough Council [1896] 1 QB 290

TEXT BOOKS

• Creyke R, Tribunals in The Common Law World (14th edn, Federation Press 2008)
• Dicey A, Allison J, The Law of The Constitution: Dicey and The Rule of Law (1st edn, OUP 2013)
• Trebilcock M, Daniels R, Rule of Law Reform and Development (1st edn, Edward Elgar 2008)

JOURNALS

• Burridge A, Gill N, ‘Conveyor-Belt Justice: Precarity, Access to Justice, And Uneven Geographies of Legal Aid in UK Asylum Appeals’ (2016) 49 Antipode
• Drewry G, ‘The Judicialization of ‘Administrative’ Tribunals In The UK: From Hewart To Leggatt’ (2009) 14 Journal of Administration and Social Science
• Dyson DK Schellenberg, ‘Access to Justice: The Readability of Legal Services Corporation Legal Aid Internet Services’ (2016) 21 Journal of Poverty
• Elliott MR Thomas, ‘Tribunal Justice and Proportionate Dispute Resolution’ (2012) 71 The Cambridge Law Journal
• Malleson K, Moules R, Padfield N, ‘Case Law, Precedent, And Judicial Law-Making’ (2010) 56 The Legal System
• Mant J, Wallbank A, ‘The Post-LASPO Landscape: Challenges for Family Law’ (2017) 39 Journal of Social Welfare and Family Law
• Miah S, ‘The Limitations of Judicial Review On U.K Perspectives’ (2013) 14 SSRN Electronic Journal
• Morris P, ‘Mediation, The Legal Aid, Sentencing and Punishment of Offenders Act Of 2012 and The Mediation Information Assessment Meeting’ (2013) 35 Journal of Social Welfare and Family Law
• Palombella G, ‘The Rule of Law Beyond the State: Failures, Promises, And Theory’ (2009) 7 International Journal of Constitutional Law
• Street A, ‘Judicial Review and The Rule of Law: Who Is in Control?’ (2015) 43 Journal of International Comparative Constitutional Studies
• Turner I, ‘Judicial Review, Irrationality, And the Limits of Intervention by The Courts’ (2010) 21 King’s Law Journal
• Walters M, ‘Dicey on Writing the Law of The Constitution’ (2011) 32 Oxford Journal of Legal Studies
• Warchus J, ‘Impact of The Woolf Reforms on It Litigation — The New Civil Procedure Rules’ (1999) 15 Computer Law & Security Review
• Whittaker S, ‘Judicial Review in Public Law and In Contract Law: The Example Of ‘Student Rules’ (2001) 21 Oxford Journal of Legal Studies
• Wincott D, ‘The Role of Law or The Rule of The Court of Justice? An ‘Institutional’ Account of Judicial Politics in The European Community’ (1995) 2 Journal of European Public Policy
• Zander M, ‘The Woolf Reforms: What’s the Verdict?’ (2009) 41 The Civil Procedure Rules Ten Years On
• Zander M, ‘Why Lord Woolf’s Proposed Reforms of Civil Litigation Should Be Rejected’ (1995) 17 Cambridge Law Journal

GOVERNMENT REPORTS

• The Law Commission, ‘Remedies Against Public Bodies: Judicial Review’ (The Law Commission 2005)
• House of Commons Justice Committee, ‘Impact of Changes to Civil Legal Aid Under Part 1 Of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’ (Crown Publications 2015)
• Law Society: Report 2: Woolf Reform Network, ‘A Continuing Evaluation of The Civil Justice Reforms’ (Law Society 2002).
• Law Society: Report 3: Woolf Reform Network, ‘A Continuing Evaluation of The Civil Justice Reforms’ (Law Society 2004).
• Woolf H, Access to Justice (Her Majesty’s Stationery Office HMSO 1996)

INDEPENDENT REPORTS

• ‘Evidencing Domestic Violence: Nearly 3 Years On’ (Rights of Women Ltd 2016)

SPEECHES AND PRESENTATIONS

• Neuberger L, ‘The Law Society Annual Lecture of Constitutional Development: The Rule of Law and Access to Justice’ (University of Cambridge, 2013)

[1]
Gianni Palombella, ‘The Rule of Law Beyond the State: Failures, Promises, And
Theory’ (2009) 7 International Journal of Constitutional Law. 442-467, 445

[2]
Entick v
Carrington (1765) 19 St Tr 1030

[3]
M. D. Walters, ‘Dicey on Writing the Law of The Constitution’ (2011) 32 Oxford
Journal of Legal Studies. 21-49, 27

[4]
Albert Venn Dicey and John Allison, The Law of The Constitution: Dicey and
The Rule of Law (1st edn, OUP 2013). 11

[5] Daniel Wincott, ‘The Role of Law or The Rule of The Court of
Justice? An ‘Institutional’ Account of Judicial Politics in The European
Community’ (1995) 2 Journal of European Public Policy. 583-602, 599

[6] Amy Street, ‘Judicial Review and The Rule of Law: Who Is in
Control?’ (2015) 43 Journal of International Comparative Constitutional
Studies. 23

[7] R (on the application of) v Lord Chancellor [2017] UKSC 51

[8] Lord Neuberger, ‘The Law Society Annual Lecture of Constitutional
Development: The Rule of Law and Access to Justice’ (University of Cambridge,
2013).

[9] John Warchus, ‘Impact of The Woolf Reforms on It Litigation — The
New Civil Procedure Rules’ (1999) 15 Computer Law & Security Review.
311-315, 311

[10] Ibid.

[11] Harry Woolf, Access to Justice (Her Majesty’s Stationery
Office HMSO 1996). 221

[12] The Civil Procedure
Rule 1999

[13] Harry Woolf, Access to Justice (Her Majesty’s Stationery
Office HMSO 1996). 198

[14] Michael Zander, ‘Why Lord Woolf’s Proposed Reforms of Civil
Litigation Should Be Rejected’ (1995) 17 Cambridge Law Journal. 3

[15] Harry Woolf, Access to Justice (Her Majesty’s Stationery
Office HMSO 1996). 65

[16] Michael Zander, ‘The Woolf Reforms: What’s the Verdict?’ (2009)
41 The Civil Procedure Rules Ten Years On. 416-433, 417

[17] Ibid. 419

[18] Kate Malleson, Richard Moules and Nicola Padfield, ‘Case Law,
Precedent, And Judicial Law-Making’ (2010) 56 The Legal System. 68-78, 72

[19] Law Society: Report 2: Woolf Reform Network, ‘A Continuing
Evaluation of The Civil Justice Reforms’ (Law Society 2002). 65

[20] Ibid.

[21] Gavin Drewry, ‘The Judicialization Of ‘Administrative’ Tribunals
In The Uk: From Hewart To Leggatt’ (2009) 14 Journal of Administration and
Social Science. 11-28, 17

[22] Robin Creyke, Tribunals In The Common Law World (14th edn,
Federation Press 2008). 47

[23] Ibid. 49

[24] Mark Elliott and Robert Thomas, ‘Tribunal Justice And
Proportionate Dispute Resolution’ (2012) 71 The Cambridge Law Journal. 11

[25] Ibid. 12

[26] Kerr v Department for
Social Development (Northern Ireland) [2004] UKHL 23

[27] Ian Turner, ‘Judicial Review, Irrationality, And the Limits of
Intervention by The Courts’ (2010) 21 King’s Law Journal. 311-331, 313

[28] Rules of the Supreme
Court, Order 53

[29] Council of Civil Service
Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374

[30] Bromley Council v Greater
London Council [1983] AC 768

[31] R v Secretary of State for
the Home Department Ex parte Fire Brigades Union [1995] 2 AC 513

[32] M. D. Walters, ‘Dicey on Writing the Law of The Constitution’
(2011) 32 Oxford Journal of Legal Studies. 21-49, 28

[33] Associated Provincial
Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223

[34] Ibid. para 507

[35] (Council of Civil Service
Unions v Minister for the Civil Service (The GCHQ case) [1985] AC
374, para. 410

[36] Strictland v Hayes Borough Council [1896]
1 QB 290

[37] Suhel Miah, ‘The Limitations of Judicial Review On U.K
Perspectives’ (2013) 14 SSRN Electronic Journal. 3

[38] IRC v National Federation of Self Employed and Small
Business [1982] AC 617, para.
630

[39] The Law Commission, ‘Remedies Against Public Bodies: Judicial
Review’ (The Law Commission 2005). 7

[40] S. Whittaker, ‘Judicial Review in Public Law and In Contract Law:
The Example Of ‘Student Rules’ (2001) 21 Oxford Journal of Legal Studies.
193-217, 201

[41] Andrew Burridge and Nick Gill, ‘Conveyor-Belt Justice: Precarity,
Access to Justice, And Uneven Geographies of Legal Aid in UK Asylum Appeals’
(2016) 49 Antipode. 23-42, 24

[42] The European
Convention of Human Rights 1950, Article 6(3)(c)

[43] Michael Trebilcock and Ronald J Daniels, Rule of Law Reform
and Development (1st edn, Edward Elgar 2008). 355

[44] Paulette Morris, ‘Mediation, The Legal Aid, Sentencing and
Punishment of Offenders Act Of 2012 and The Mediation Information Assessment
Meeting’ (2013) 35 Journal of Social Welfare and Family Law. 445-447, 446

[45] Ibid.

[46] Artico v. Italy (App
No. 6694/74) A/37 [1980]

[47] Quaranta v. Switzerland (App
No. 12744/87) [1991]

[48] Dana D. Dyson and Kathryn Schellenberg, ‘Access to Justice: The
Readability of Legal Services Corporation Legal Aid Internet Services’ (2016)
21 Journal of Poverty. 142-165, 159

[49] Dana D. Dyson and Kathryn Schellenberg, ‘Access to Justice: The
Readability of Legal Services Corporation Legal Aid Internet Services’ (2016)
21 Journal of Poverty. 142-165, 143

[50] House of Commons Justice Committee, ‘Impact of Changes to Civil
Legal Aid Under Part 1 Of the Legal Aid, Sentencing and Punishment of Offenders
Act 2012’ (Crown Publications 2015). 10

[51] ‘Evidencing Domestic Violence: Nearly 3 Years On’ (Rights of
Women Ltd 2016). 2

[52] House of Commons Justice Committee, ‘Impact of Changes to Civil
Legal Aid Under Part 1 Of the Legal Aid, Sentencing and Punishment of Offenders
Act 2012’ (Crown Publications 2015). 14

[53] Jess Mant and Julie Wallbank, ‘The Post-LASPO Landscape:
Challenges for Family Law’ (2017) 39 Journal of Social Welfare and Family Law.
151