Defining precisely what access to justice is has been a difficult topic for debate amongst lawyers, courts and even the government. In principle, it proposes a wide range of effective and affordable legal procedures available to people, irrespective of their income both before litigation takes place and formal legal representation in court. However, since the enactment of the Legal Aid, Sentencing and Punishment for Offenders Act [LASPO] (2012), budget cuts and an increase in court fees has drastically narrowed the criteria of eligibility and therefore hindering some of the most disadvantaged from gaining effective legal advice in their disputes. Academic criticisms and annual reviews commissioned by governmental working bodies have reinforced the damaging effect of this on the wider concept of access to justice within the English legal system, highlighting the need to establish a more practical framework to overcome the current problems and develop an effective and accessible system for all sectors of the law and society. Still, the lack of success in actually implementing the suggested proposals signify that there is still more progress to be completed, ensuring the English legal system fosters what is supposed to be an accessible and effective access to justice system, to ‘all members of the community in all parts of the law .
Problems with Access to Justice and the Impact of LASPO:
Accessing justice within England has been a principal issue since the Second World War and the initial development of a practical legal aid system. Whilst laws passed have sought to initiate some regulation and control over the system as seen in the Access to Justice Act 1999, the overall lack of success of the English legal system in attaining an effective and fair system for all has essentially prohibited many people from gaining efficient legal advice and representation in their disputes.
Substantively, it was through the enactment of Legal Aid, Sentencing and Punishment for Offenders Act (2012) which broadened the despair and inefficiency across the legal aid system. Despite the opposition amounting from a majority in the legal profession and Parliament, the changes made drastically reduced spending on legal aid by a total of £350 million primarily in areas concerning family disputes, immigration claims, social welfare and employment law. Reports on the impact of these cuts made by the House of Commons Justice Committee in 2016 outlined the dangerous implications of the Act on people and the vast restrictions it placed on the accessibility of legal aid. Emphasis was placed on the government’s lack of strategy in implementing the cuts, resulting in many areas being removed from the scheme and the remaining budget failing to target the most disadvantaged in society and therefore unsuccessful in its deliverance of a better value for money . This resulted in both an underspend of the new budget as well as creating “knock on costs” elsewhere in the legal system with court using more resources to assist litigants in person in their cases. Such implications highlight that despite the government’s efforts to save money through these cuts, the critical view sustains that this has only made things worse in the functioning of an effective justice system. This is exemplified significantly in family courts, where the government’s privatisation of family disputes through early intervention and alternative dispute methods have only raised a wider question of whether these measures entail effective access to justice. Through the Act, tailored legal advice previously provided by a solicitor before to the mediation process has effectively been wiped out and consequently has left parties ‘in the dark’ about their legal position, therefore resulting in some unfair decisions being reached without any legal aid funding to enable them to take their cases further to court if required. Statistics published by the National Audit Office in 2014 highlighted ‘a 30 per cent increase in family courts where neither party were represented, which judges argued took 50 per cent longer than those with formal representation and could have been easily resolved with focused legal advice’ . Such implications highlight that despite the government’s expectancies that the reforms would discourage unnecessary and adversarial litigation and make significant savings in the costs of the scheme , the consequences mean there are generated costs elsewhere in the legal system, through court resources and time being used to aid litigants in person. Additionally, even with the funding available, the lack of public information means less people are aware of what kind of legal assistance is available to them and therefore unable to access it for their cases.
Academic criticism has further signified the inefficiencies in the system, both in civil and criminal legal aid system and the impact Legal Aid Sentencing and Punishment for Offenders Act (2012) has had on the legal profession and justice system. Jo Renshaw in reflection of the impact of the Act on immigration argues that the government’s argument to limit legal aid to complex cases as a better value for taxpayer money is unsatisfactory when the reality portrays something different. In her article, Renshaw correctly states that the reality of cases particularly concerning immigration and family involves children and the livelihood of people who are at risk of losing their homes and jobs and because of the new provisions, they have little to no access to legal assistance which often forces them to represent themselves meaning they must endure the lengthy processes alone . Despite government response being that the Act was not to widen the scope of legal aid but rather narrow the legal aid budget to the most vulnerable in society to deliver a better value for money, the areas of law removed from the budget primarily concern the most disadvantaged in society, particularly women and children, hence having more negative consequences than actually providing efficient legal aid. Central to the cuts were the fixed- standards and means testing required for assessing individuals’ eligibility for government funded legal aid. Arguably, this has not only resulted in a lack of legal expertise available to people in areas previously funded through legal aid schemes, it has also altered the ways in which legal services are available to people and the organisations providing it. Ultimately, while the future of the current system remains uncertain, its ineffectiveness to deliver a sufficient standard of justice implies a more practical framework is to be established to ensure the inclusivity of legal aid and its availability across all sectors of the law.
Similarly, in the criminal legal aid system, reductions to legal aid fees and the introduction of two-tier contracting model posed serious threat to the long-term survival of many firms . Despite the overriding opinion indicating that high costs were because of the legal aid providers and ‘fat cat’ solicitors wanting to profit of taxpayer money, evidence suggests contrary to this. Deloitte argued this to be the government’s ‘political justification’ for the continued reductions to the criminal legal aid budget. In reality, the decline of the budget is due to the financial crisis of 2007-8 which required austerity measures to be taken to save money, especially in the legal aid system. Nevertheless, through the consistent cuts and dual contracting, an uncertain future is set for criminal solicitors and barristers who deliver legal aid, especially in areas concerning criminal defence. Due to its nature and dependence on legal aid, the new provisions under the statute and means the quality of service delivered is both bleak and ineffective in providing proper legal assistance. Furthermore, with EU necessitating positive reform in criminal legal aid through ‘procedural rights roadmap’ and legislation, the lack of incentive from the UK government to implement any of their reforms is significant to the suggestion that England is lacking an effective and operational justice system. Ultimately, it is because of the government’s lack of incentive for reform in the near future which raises the question as to whether the English system is offering effective and fair access to justice for its citizens.
Framing an effective legal system and access to justice:
Providing effective access to justice is essentially a fundamental human right in any democratic legal system. In the English legal system, this also means complying with human right standards set under the European Convention of Human Rights in guaranteeing that there is no breach of human right principles. The key principle set under Article 6 of the Convention gives individuals the entitlement to a fair trial in court to ensure the ‘determination of civil rights and obligations. The second obligation is specific to criminal cases to ensure there is a fair administration of justice . Although it is correct to assert that England complies with these rights, the reformation of the legal system under Legal Aid, Sentencing and Punishment for Offenders Act (2012) has constricted the rates at which effective forms of justice are available to people. Notably, arguments toward the development of a better system has been substantial to the government in ensuring that effective access to justice is an integral element within our legal system and accessible to all as any democratic system should be.
Significantly, this is illustrated in a parliamentary report by Lord Bach and Fabian society titled the Right to Justice Act outlining a statutory right to justice pioneering for permanent change in the legal system and the external forces which influence it. Defining access to justice, Lord Bach stated it to be ‘a fundamental principle to the rule of law and essential to the democratic foundations the political and legal system’ . Previously in his interim report published in 2016, he identified six key features failing the system, including some external features affecting it such as legal education and bureaucracy. Emphasis was placed on the issues entrenched within LASPO with suggestion to repeal the Act for a simpler legal system focused on acquiring efficient and accessible justice for people through a new system of minimum standards over fixed rates and means testing.
In his assessment of the justice system over a two-year period, he proposed the establishment of a Justice Commission under the statute to supplement the existing rights of people toward offering a reasonable, more intelligible standard of access to justice. The purpose of the act was to develop a new legal framework transforming the current system and ensuring that the government can make access to justice a reality. Through his report and debates, emphasis was made on the safeguarding the rights of people through early intervention of the government and widening the legal capabilities of people so that they could be aware of the kinds of assistance is available for them. From this, it is clear that through the development of a new system placing the rights of the people central with government intervention and reasonable costs, an effective justice system is plausible. Nevertheless, whilst these proposals were significant in the movement toward an effective justice in the English legal system, its implementation remains unknown at most due to current nature of Brexit overshadowing parliamentary discussion.
Conclusively, through the enactment of the Legal Aid, Sentencing and Punishment for Offenders Act (2012), it is clear the English legal system does little to offer effective access to justice for all. Through consistent budget cuts and increase in court fees, the reduced number of legal providers and cases heard in court poses risk to people wanting to exercise their rights. Despite criticism against the government suggesting the necessity of a new practical system is ensuring all people from all backgrounds and sectors of society are getting effective and equal access to justice, in their cases the lack of success toward implementing this suggests there is still more progress ahead. Although argued that justice and a fair system is central to the rule of law in England, it is correct to assert the English legal system requires a transformation to ensure effective and equal justice