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