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Justice isn't being served

29 October 2018

As lawyers, we are really good at talking about "access to justice". I have used that phrase countless times over the past few years.

 

We are all passionate about justice. Yet we struggle to persuade the media and politicians that it is something the public cares about. There is a real risk that the phrase has become an abstract concept disconnected from the day to day reality of people's lives.

If we want to win the arguments about justice, we have to get smarter at explaining to people what it means in relation to their day to day lives, and why they should care as deeply as we do that access to justice in this country is under threat, as Supreme Court Justice Lord Wilson said in September 2018.

There is no one approach that will engage people. But there are reasons why people, whatever drives them, should care about access to justice.

Some people are driven by empathy for others. They are relatively easy to reach. We only need to describe the people we help, and they will support us: the people fleeing domestic violence, the families living in squalor, the harassed parent arrested for theft after distractedly putting something in their bag.

When you will need legal advice, or a lawyer

Others may be less convinced about the need for legal aid unless they can imagine the scenario where they might need it. Many people cannot imagine they would ever be arrested, but suppose:

  • They were involved in a fatal road accident and accused of causing death by careless driving?
  • What if a burglar broke into their home and they tackled the burglar, causing them a serious injury?

There are circumstances where anyone could find they need civil legal aid.

  • What if you went in for an operation and ended up in a worse condition because of clinical negligence?
  • What if you were unfairly sacked?
  • What if you became disabled and needed long-term care which your local authority refused to provide?

Despite all these arguments, however, a lot of people will be concerned about any public spending at a time of austerity. There are many demands on taxpayers' money. Why should this be a priority for whatever money is available? Here too we have really strong arguments.

Legal aid for early advice saves money

The first point is that legal aid can nip problems in the bud. If you provide someone with a small amount of advice on their housing benefit problems, it can prevent the rent arrears spiralling out of control. This means  the local authority is spared having to spend public money taking the tenant to the Courts which also run on public money, resulting in the family being homeless and causing them to have to rely on a whole host of further public budgets.

Litigants in person

Secondly, without legal aid, those with disputes will often end up as litigants in person. When this happens in the civil and family courts, the effect is that people are more likely to issue proceedings rather than negotiate a settlement. Hearings take longer, with knock-on consequences for the other side in their own case and everyone else who is waiting for a hearing. Cases are more likely to go to a fully contested final hearing, because the parties are unable or unwilling to reach their own agreement to settle.

In the criminal courts, defendants in person will struggle to understand the proceedings. They may enter an inappropriate plea – pleading guilty when in fact they have a defence, or pleading not guilty when an early guilty plea would have been the right course for them. Hearings in these cases will also take much longer than those where the defendant is represented. There are also adverse consequences for victims and witnesses, who may face being cross-examined by the defendant in person.

Thirdly, there is a growing body of evidence that a failure to address people's social welfare law problems leads to them relying more heavily on the NHS, suffering from stress and anxiety. The costs of the additional GP appointments and prescriptions for anti-anxiety medication are highly likely to outweigh the cost of providing a little bit of social welfare law advice to people.

There is a broader societal issue at stake here. As a growing number of people find that they can't get justice through the official channels, there is a risk of more and more people taking the law into their own hands. It is a risk the government itself recognised in its impact assessment when it introduced wide-ranging legal aid cuts in 2013. If trust in the justice system breaks down, the rule of law will be replaced by the rule of the mob, or of might is right. And which of us can be confident that we would not be the losers if that were to happen?

If we are going to win this argument, we need to break out of our bubble, stop talking just to ourselves and the already converted, and explain clearly to the public why justice should be important to every single one of them.

 

 Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

Find out more about Justice Week, a new initiative organised by us, the Bar Council and CILEx, running Monday 29 October to Friday 2 November

View our photography exhibition: Justice in focus, which shows the importance of access to the justice system for those with difficult legal issues. It highlights some of the ways access to justice solves the problems many of us encounter in our lives. The exhibition will be in our main foyer during Justice Week

Explore our pro bono and international projects

Sign up to our Pro Bono Charter. It is a Statement of Commitment that firms, ABS and in-house teams are invited to sign up to. It is a great opportunity to highlight your law firm or organisation's pro bono work

LawWorks is a charity which can help to match you up with volunteering opportunities

Tags: justice | access to justice | rule of law

About the author

Richard Miller is head of the Justice Team at the Law Society.

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