Sunday, 19 July 2009

Access to justice in UK – nul points?

There’s another interesting speech about access to justice in the UK recently made by a judge, Master of the Rolls Lord Clarke of Stone-Cum-Ebony, in a lecture on 15 July 2009 for the Mary Ward Legal Advice Centre.


In summary, he was critical about the government’s refusal to adequately fund legal aid for civil and family (as opposed to criminal) cases.

This shortsighted penny-pinching threatens to undermine the UK justice system.

The entire UK justice system, family and civil as well as criminal, must be able to determine disputes fairly, impartially and at a cost litigants can afford.

Civil and family justice shouldn’t be seen just as optional extras, as “customer services” whose costs ought to be pared to the bone.

If people are denied effective legal remedies, they may lose confidence in the justice system and be tempted to resort to self-help – including perhaps violence - which would ultimately undermine the fabric of our society and our commitment to the rule of law.


Some choice quotes (my emphasis added):

“…It is not sufficient therefore to announce our commitment, either implicitly or explicitly, to the rule of law. We must have the means by which that principle can be given proper effect. It calls for proper democratic institutions.

It calls for just laws promulgated by those institutions. It calls for a justice system which can give effect to those laws..

It seems to me that we may well now be (and have perhaps for some time been) in the process of undermining the efficacy of our justice system…

It is often said that civil justice, including family justice, is the poor relation to criminal justice. If there is any public money the vast majority goes to crime, a small amount then goes to family and a minute proportion goes to civil. This can clearly be seen from the government’s recent consultation on civil legal aid…”

Quoting another top judge, Sir Andrew Morritt, Chancellor of the High Court, who said:

“1. “Justice, like the Ritz, is open to all”. Whether this cynical aphorism is correctly attributed to Mathew LJ at the end of the C19th or to Horne Tooke at the beginning matters little when compared to the distressing fact that the bitter sarcasm behind the statement is even more obvious now than it was then. Notwithstanding many and varied efforts over the last hundred years or so on a number of different fronts the burden of costs is too great for most people to contemplate. It follows that those who are wronged may be denied any effective remedy and those who are sued without sufficient cause may be unable properly to defend themselves. Consequently the attraction of extra-judicial remedies increases.
2. This ought to engage the urgent attention of the government of any  democratic state. Sadly the only attention it has attracted from ours, at least so far, is the practical removal of civil legal aid and a policy of full cost recovery under which there have been substantial increases in court fees payable by all not already on benefit of some kind or other. Indeed in the Response to Consultation on Civil Court Fees published last week the Ministry of Justice observed, somewhat peevishly, that though not asked to do so 19 out of 52 responses commented unfavourably on that policy…”

- Lord Clarke pointed out that:

“..The fundamental point that Sir Andrew makes here is that it is grossly inaccurate, or put another way, an utter misconception, to perceive civil and family justice as some form of optional extra that should be given, at best, no more than a begrudging subsidy…

…What is profoundly wrong with statements such as Middleton’s, and that of the Ministry of Justice’s response to the critical responses to its own consultation on civil legal aid, is the idea inherent in them, that the civil and family justice systems are optional extras, which it is an unjustifiable and unnecessary burden for the general taxpayer to fund. Let me be clear I am not suggesting that the taxpayer should be expected to provide a blank cheque. But I am suggesting that the State should properly understand that properly funding the civil and family justice systems is as essential a part of a society committed to the rule of law and to open democratic ideals, as is properly funding the criminal justice system

…Neither the civil nor the family justice system exists simply to resolve private disputes. Neither of these facets of the justice system exist simply to deliver services to customers. On the contrary, they both exist to determine rights, which include rights and obligations as between the individual and the state. They do exactly what the criminal justice system does, when it determines guilt or innocence…

…Even in those classes of case which can properly be said to involve the determination of rights and obligations as between private individuals, there is a public aspect to those cases on a par with the public role of the criminal courts… There is a clear public interest in determining such disputes.

The first aspect of that public interest is that judicial determinations of such private claims can clarify and develop the law…

…The development and clarification of the law through judicial decisions… serves a clear public role; a role central to the proper implementation of the rule of law…

…if the family and civil justice systems were inadequate to the task of determining such disputes fairly, impartially and at a cost that litigants could afford, those litigants might lose such confidence in them that they would resort to self-help. Resort to self-help could take a benign form. It could, however, also take anything but a benign form. It could see the law not being applied by court decisions but through violence and the threat of violence. Down that path lies an increase in crime with the consequent use of the criminal justice system. What purpose, we could ask, would diverting civil and family disputes to the criminal justice system in this way possibly serve? To my mind it would only serve to undermine the fabric of our society and our commitment to the rule of law..”

See also other top judges’ speeches on:

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