First 100 Days - Restoring Access to Juctice
Restoring Access to Justice
Prof Marjorie Mayo
Marjorie Mayo is Emeritus Professor of Community Development at Goldsmiths, University of London.
Access to justice is not only about ensuring people’s rights, although this is vitally important, it is an issue of social justice, especially so for those with least power and resources of their own. Even more fundamentally, access to justice represents a basic principle underpinning democratic societies – that of protecting citizens against arbitrary government. From Magna Carta in 1215 onwards, no one should be ‘financially unable to prosecute a just and reasonable claim or defend a legal right’ as a matter of principle. This commitment to access to justice for all, regardless of the ability to pay, was further enshrined in the establishment of legal aid in 1949 as a pillar of the Welfare State.
In recent decades however, citizens’ access to justice has been increasingly undermined, with particularly serious effects on the poorest and most disadvantaged sections of society. Under the Coalition government access to justice at work has been restricted through the introduction of tribunal fees and legal aid has become less and less available for the very people who need it most. Figures have shown that 70% of potentially successful cases at employment tribunals have not gone ahead because employees are deterred by costs¹. At least 80% of those affected by the recent legislation to reduce the provision of legal aid (Legal Aid, Sentencing and Punishment of Offenders Act 2012, LASPO) have been from the most disadvantaged sections of society, including people with disabilities and women affected by domestic violence².
A new progressive government needs to prioritise ways of protecting and improving access to justice for all, with particular emphasis upon improving access for disadvantaged communities.
The focus of this essay is upon what a new government should set in motion in the first 100 days, whilst planning for the longer-term. Although resources can be expected to be constrained in the immediate future, in fact for every £1 spent on legal advice and aid the state saves around £6 on other forms of spending, such as costs arising from families becoming homeless and children being taken into care³. Whilst here the emphasis is upon improving access to justice in relation to welfare and family law, access to criminal legal aid and ensuring access to justice at work, such as ending tribunal fees, must also be prioritised.
The first priority in improving access to justice in welfare and family law must be to implement reforms that can be achieved immediately, under current legislation, using the Secretary of State’s existing powers. These changes could be funded through the use of existing underspends in the immediate future, although they would pay for themselves in the longer-term by using public resources far more effectively.
The poorest and most disadvantaged sections of society have been particularly seriously affected by the implementation of LASPO, which drastically reduced the scope of access to legal aid – without making any long-term savings for the public purse. Housing benefit cases are a particular priority for reform⁴. There is no sense whatsoever in denying people access to legal aid, when sorting out their benefits problems could resolve issues at an early stage, rather than waiting until households face the risk of homelessness before they can obtain legal advice and aid. Such restrictions on access to justice were false economies. These restrictions should all be reversed and this process begun within the first 100 days.
Whilst it may take a little longer to once again extend eligibility for legal aid across all social welfare law and ensure that there are providers in place to offer support, there are issues of immediate concern that must be tackled in the first 100 days, even for those areas of law that are still eligible for legal aid. The particular priority here is domestic violence. Although cases involving domestic violence have remained eligible for legal aid, the surrounding regulations for demonstrating clients’ eligibility are far too restrictive. These regulations need to be changed as a matter of urgency.
There are further urgent reforms that should be introduced by a new progressive government to ensure everyone is able to access justice. For example, children and young people up to the age of 18 should be eligible for legal aid right from the start.
In addition, mandatory requirements to access justice via telephone gateways should be removed immediately where there are providers in place (e.g, debt), and arrangements for authorised providers across the other areas of law be put in place as soon as possible. Although these may work for some, they are totally inappropriate for others, such as clients with complex, interrelated welfare problems and those grappling with barriers such as language or mental health issues. Furthermore, the present system of ‘Exceptional Funding’ arrangements, which were intended to provide funding for compelling cases involving human rights not otherwise covered by legal aid, is also in need of urgent review. This system is not fit for purpose and is clearly failing to provide the safeguards that were promised to Parliament, meaning that many people are missing out on their opportunity for justice.
LASPO has had very damaging effects on the provision of legal aid and advice. Funding restrictions have impacted on Law Centres and Citizens Advice Bureaux – with nearly 200 Bureaux leaving the legal aid system since 2013. Private law firms have also moved away from welfare law provision. The Big Lottery Advice Transition Fund has enabled advice providers to survive in extremely challenging times. This fund should be continued for an additional year, to keep services going, pending the development of longer-term funding mechanisms. The provision for criminal legal aid is already under huge strain, and the proposed two-tier system should be cancelled immediately – otherwise many, if not most, good firms will be forced out of business, leaving people vulnerable to miscarriages of justice.
These short-term measures for the first 100 days of a new government need to be backed up with the development of a national strategy for the longer-term.
There are excellent examples of collaboration and planning, bringing different organisations and agencies together to provide services holistically and cost effectively within their particular areas. Similar approaches need to be developed more generally from the bottom up. There are currently ‘advice deserts’ – parts of Britain where people are unable to obtain advice and aid without travelling considerable distances. Good practices at the local level should be built upon as part of a national strategy to tackle these problems. This strategy would provide the overall framework for local strategies, which would be co-produced at local authority levels. The development of such a strategy would take somewhat longer – rather more than the first 100 days. But the mechanisms could be set in motion right away, with a clear remit to develop such a strategy, together with proposals for ensuring funding and for accountability and quality control, for the longer-term.
Access to justice for all, regardless of the ability to pay, has been a fundamental principle for any democratic society. An incoming government cannot be expected to provide instant solutions, reversing the setbacks of previous decades. But very significant progress could be made within the first 100 days, setting the framework for further progress towards ensuring access to justice for all.
1 See, http://www.newstatesman.com/staggers/2014/09/new-fees-cause-70-cent-drop-employment-tribunal-cases
2 Mayo, M. and Koessl, G. (2015) Magna Carta today? What would a progressive government need to do, to ensure access to justice for social welfare in the twenty first century? Goldsmiths and Unite the Union.
4 The Low Commission 2014