What price justice?

Legal Aid turned 60 last year and some say it is no longer up to the job of ensuring legal representation is there for those who otherwise can’t afford it. The issue is a fundamental one – access to justice – prompting the Law Society to call for a debate to find a way to save it

It’s a fundamental principle that everyone is equal before the law, and subject to it, regardless of wealth or status, but not everyone can afford the bill for legal representation.

That issue of access has implications, not only for the high national ideals of citizenship and democracy, but for everyday neighbourhood life, because people have a tendency to take matters into their own hands if they feel that justice has not been done.

“Nothing rankles more in the human heart than a brooding sense of injustice. I llness we can put up with, but injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the existence of free democracy is not imaginary but very real,” said Supreme Court Justice Brennan in 1956.

Or to bring it a little more closer to home, as Lord Justice Judge said last year: “The alternative [to people being able to access justice] is mayhem. The alternative is, ‘if nobody else will help me, I will have to find someone to throw bricks through windows’, or worse. You end up with the peace being broken and you end up with crimes being committed, crimes of violence.”

Both men are quoted in a report published by the Law Society – ‘Access To Justice Review’ – published in March. The report, an interim document intended to provoke debate about the future of Legal Aid, is an impassioned defence of the principles of access to justice for the poorest and most vulnerable members of society. But it also acknowledged that the existing system of providing access to legal representation – established in 1949 – is no longer working.

“[F]or more than a decade, funding for access to justice has been stretched and reduced in real terms. P olicy has seemingly been decided in a haphazard and unconnected manner. Legal Aid provision has become less and less viable for many solicitors. It has become increasingly difficult for clients to find a lawyer ready, willing and able to take on a publicly-funded case... As it stands, the current legal aid system is completely unsustainable. It is not delivering genuine access to justice for the public,” said the report.

The Law Society played a central role in establishing Legal Aid, and ran the system for some 40 years, before passing on the baton in 1988. Today it is managed in England and Wales by the Legal Services Commission (LSC). It provides wide-ranging, although not exhaustive, assistance in civil and criminal matters. But following the publication of Sir Ian Magee’s review of Legal Aid governance and delivery, the Law Society says that radical reform is needed.

“The whole legal aid system has lost its way,” said Robert Heslett, President of the Law Society, on the publication of its interim report. “Over the past few years funding has been stretched and reduced in both real and actual terms. We consider that a radical rethink is needed. If not, there is a very real risk that those solicitors supplying legal aid services, already disillusioned and fragmented, will eventually disappear or become incapable of being effective.

“The Law Society believes that the Government’s obligation to society to ensure access to justice has to begin with the realisation that decisions as to funding should flow from an assessment of need rather than from an arbitrary budget allocation.”

Ensuring that justice is seen to be done, by ensuring that justice is available to all is the burning issue at the heart of the Law Society’s call for the debate. As Heslett commented in the report: “The rule of law cannot exist without access to justice. It is the fundamental right of every citizen and its provision is a front-line service every bit as important as health, education and policing. It is beholden on us all to safeguard its future.”

Points of law
The Legal Services Commission (LSC) says that in any given year, legal problems such as divorce, eviction or debt will be experienced by:
• One in every four people
• One in three long-term sick or disabled people
• One in two unemployed people
• One in two lone parents
The organisation adds that in a typical year, Legal Aid helps over two million people, including:
• Over 250,000 people involved in family disputes
• Over 90,000 people struggling with debt
• Around 125,000 people suffering with housing problems
• Around 18,000 people suffering domestic abuse
• Over 90,000 people to get the welfare benefits they are entitled to
• People held at police stations on more than 750,000 occasions
• People involved in more than 560,000 magistrates’ court appearance
In 1982/83 the Legal Aid budget was £545 million and by 2008/09 this had risen to about £2.1 billion, according to the Ministry of Justice.