The president of the Supreme Court said the country has a ‘serious problem’ with access to justice for ordinary citizens and small and medium sized businesses. Sketch by Isobel Williams (www.isobelwilliams.org.uk).
Lord Neuberger said that access to legal advice and representation is a ‘fundamental ingredient of the rule of law’, and that the rule of law together with democracy is one of the two principal columns on which a civilised modern society is based.
Addressing the Australian Bar Association’s biennial conference, he said: ‘It is simply wrong, and fundamentally wrong at that, if ordinary citizens and businesses are unable to obtain competent legal advice as to their legal rights and obligations, and competent legal representation to enforce and protect those rights and test those obligations in court.’
Obtaining advice and representation, he said, does not merely mean that competent lawyers exist, but that their advice is affordable to ordinary people and businesses.
He said: ‘Access to justice is a practical, not a hypothetical, requirement. And if it does not exist, society will eventually start to fragment. It is a fragmentation which arises when people lose faith in the legal system: they then lose faith in the rule of law, and that really does undermine society.’
Neuberger warned that in countries with a long peaceful and democratic history such as the UK, there is a serious risk that the rule of law is first taken for granted, then ignored and finally lost – and only then does everyone realise how absolutely fundamental it was to society.
Criticising successive governments, he said: ‘It verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable. It has faint echoes of the familiar and depressing sight of repressive totalitarian regimes producing wonderful constitutions and then ignoring them.’
Neuberger said the government’s record in legal aid provision had been ‘patchy’ since the Legal Aid and Advice Act 1949, and singled out the Access to Justice Act 1999 for severely restricting civil legal aid and introducing a costs regime, which he said was ‘very hard to defend’.
Subsequent acts, such as the Legal Aid Sentencing and Punishment of Offenders Act 2012, he said had further restricted civil legal aid.
He said: ‘Apart from being inherently questionable, such policies can have unattractive, albeit often predictable, unintended consequences: for instance, limiting legal aid in disputes between husbands and wives to those involving domestic violence encourages people to make allegations of domestic violence so as to qualify for legal aid.’
These changes over the past 20 years in civil and family legal aid, he said, have resulted in many people denied access to justice or forced to represent themselves, with the consequent difficulties for all concerned.
He said: ‘Many people, including me, feel that things took a wrong turning in civil legal aid in 1999 and we have all been busy hoping or even trying to put Humpty Dumpty back together again – but like all the King’s horses and all the King’s men, I am not sure that we can do it. I fear that it is 20 years too late to turn the clock back to reincarnate the philosophy underlying the 1949 Act which was that “no one will be financially unable to prosecute a just and reasonable claim or defend a legal right” .’
While much of the responsibility for ensuring access to justice, he said, lies with the government, lawyers and judges have an equal duty.
They cannot get away with ‘standing on the sidelines and criticising’ he said, but ‘have a heavy duty to do all they can to support and improve access to justice for ordinary citizens and small businesses’.
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