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Access to Justice: the Responsibility of the Government

by Andrew Caplen
27 February 2015

Following the economic crash in 2008, almost every central government department has had it’s budget slashed. Justice has been no exception, with the result that the consequences for many citizens could not be more dire. Cuts to civil legal aid have resulted in some 600,000 people losing the ability to access justice; the Jackson Reforms have made lower-value and complex cases financially unsustainable for many solicitors’ firms, resulting in fewer places to obtain legal help; and funding shortages are forcing law centres to close. Then there is the recent announcement of the planned hike in fees for the use of the civil courts - in some cases, the changes will amount to a 600 per cent increase. Many on low and medium incomes are, without doubt, being priced out of the civil justice system.

These cuts and changes combined amount to a fundamental shift in how our legal aid and civil court system works. And they beg an important question - has the state begun to shirk some of its responsibilities in order to reduce the fiscal burden?

Take legal aid; surely these changes are contrary to why it was originally created? It was, of course, first established in 1949 as part of the wider post-war welfare reforms. In a 1948 Commons debate on the Legal Aid and Advice Bill, the then Attorney General, Sir Hartley Shawcross, opened by saying 'it is a Bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay'. The driving force was to ‘level the playing field’ and ensure that everybody, regardless of wealth or status, could access justice.

Like health, funding for justice should surely be seen as a type of state-sponsored ‘insurance’. Nobody wants to suffer an injustice - but if they do, it is vital that there is a safety net that provides an equal opportunity for everyone. If the government fails in this duty, and puts society back 60 years in the process, we risk a situation where justice again becomes the preserve of the wealthy, and the rest must ‘make-do’.

There is also increasing evidence that these cuts do not represent value for money. In the words of the Public Accounts Committee, the Ministry of Justice is 'unable to say whether the cuts that it made to legal aid spending have simply shifted costs elsewhere in the public sector', and cited the potential cost of the increased physical and mental health problems arising from the inability to access advice. Further, the National Audit Committee has estimated that the significant rise in the number of litigants in person will cost an additional £3 million per year to the HM Courts & Tribunal Service, as well as a direct cost to the Ministry of Justice of approximately £400,000. This is in addition to a recent commitment of £2 million of funding to support litigants in person.

We are also very concerned at the impact the increase in court fees will have and consider that these pose an unacceptable risk that claimants will be priced out of justice. Smaller businesses, which often rely on the courts to enforce contractual payments and restore cash flow, will also suffer financially. And unsuccessful defendants will have to reimburse the enhanced fees - this group comprises not just insurers, but businesses and public sector organisations, such as local authorities and the NHS, demonstrating that, much like the legal aid cuts, these changes may well just shift the financial burden elsewhere whilst simultaneously causing damage to the legal sector. We are, therefore contemplating proceedings against these proposals on several grounds, including that the government does not have the power to raise fees for the purpose it has stated in the consultation - 'to make departmental savings'.

The primary theme for my year as President has been that of seeking to promote access to justice. I am convinced that these changes not only harm our profession but also cause significant harm to the wider population. This is why we will continue to use every opportunity to highlight the effects of all of this - and to challenge what has been taking place.

The Law Society does appreciate the need for the government to be cautious before spending taxpayers’ money and recognises the need for savings in this age of austerity. However, our view is that these cuts and changes are inefficient and result in additional ‘knock-on costs’, whilst fundamentally damaging the cornerstone to our legal system - access to justice.

That is why we will continue to call for a full review of both the legal aid and the civil justice system. Victims of negligence and other civil wrongs should be restored to a position where they can properly enforce their legal rights.

Read more details about the Law Society’s Access to Justice campaign.

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