Guest blog: Lord Marks QC - Where now for access to justice?

7 April 2016

Lord Marks QC 

Access to justice is a central feature of the rule of law. Legal rights, remedies and protections mean nothing if they cannot be enforced in practice.  They then exist in the realm of theory only.  The rule of law requires that all citizens are equal in the eyes if the law. To make that principle a reality in a fair society, all citizens should be able to access the courts and have their cases heard on an equal basis.  That means that where a case requires presentation by a lawyer, access to advice and representation should be available. 

This principle has always been applied, even in the heady days of legal aid, on a rationed basis, so that insignificant or unmeritorious cases have not been funded by the state and there has always been some restriction on the amount that may be spent.  The principle is nevertheless worth stating in absolute form, if only to emphasise that limitations on legal aid are derogations from it.

However, access to justice goes beyond legal representation and advice on significant matters for those who cannot otherwise afford it. It also means that our law and its principles should be intelligible and easily accessible (and there is no excuse for failing in this in the internet age), that our courts and tribunals should be open to all, regardless of wealth or status, and that our justice system should provide a first class service, straightforward to use, without excessive costs or unnecessary delays. In recent decades all governments have failed to live up to these standards.  The current drive to increase court fees, with scant regard to their effect in inhibiting legitimate claims is a prime example of this failure.

During our time in coalition government compromises were necessary in the interests of economy and these often did not reflect Liberal Democrat priorities. Although our programme of government did stabilise the economy and put us on the road to recovery, we recognise that the consequences of the Coalition's actions on access to justice, particularly in the LASPO Act, have started to bite hard and access to justice has been damaged.  Too few are now able to secure their legal rights effectively and at too great a cost.

Reductions in the scope of civil legal aid have had a serious impact on social welfare claimants, one of the most vulnerable groups in society, and have failed victims of domestic violence, who face an unnecessarily complex procedure before they can secure legal aid at a frightening and bewildering time in their lives.  Exceptional case funding has worked badly, with very low take up, and a failure to clarify its availability, so that many who should in theory have access to a far smaller legal aid pot are not getting it. The restrictions on legal aid for judicial review permission applications have weakened government accountability.

We urgently need a review of how the system is working. However, any review must engage effectively with the professions, which successive governments have failed to do in relation to both criminal and civil legal aid for years. But that also requires that we in the professions must be honest with ourselves and seek a new pact with Government that is both radical and sustainable in a difficult financial climate.

Access to justice requires physical access to justice and communities built around the rule of law. We should be careful about closing local courts without the broadest assessment of the impact of closures.  Not only do longer travelling times affect victims, witnesses and professionals, as well as defendants and their families, but local media reporting of court cases is also threatened. Alternatives, such as the use of local buildings, have not yet been thoroughly explored.

We should sustain the magistracy, without alienating its members, as the Government did with the ridiculous - and happily now abandoned - criminal courts charge.

The "drive towards digital" is welcome. Greater use of technology has a major role to play in making the courts more efficient and accessible and in saving costs. However, this needs a long-term commitment and properly thought out procurement - too many flawed government technology projects have died after wasting millions.

We must seek alternative ways of providing legal services to vulnerable people. This means better and widespread networks to give advice and support, as recommended by the Low Commission. Our efforts in the Coalition Government to promote mediation and restorative justice must be continued.

To protect and enhance access to justice for the next generation and beyond, we are consulting on what a realistic justice system would look like, given the continued constraints on government finances. We seek radical ideas and want politicians to be led by experts, not ideology. All views are welcome. Our call for evidence can be found here:  https://drive.google.com/file/d/0B6xKaPbfC-JzVG5ZdEpmNWVlcFE/view

Response to our call for evidence should be sent to aliv@parliament.uk by 17 April 2016

Lord Marks QC is the Liberal Democrats' Lords spokesperson on justice