back to news

Access to Justice - Paul Brown's blog for the Law Society

2017-09-11 09:35:26



ACCESS TO JUSTICE


For all my career I have worked in Law Centres tackling the unmet legal needs of people in disadvantage. Law Centres provide a vital resource in enabling access to justice, and allowing the most vulnerable people in society to vindicate their rights.


Most of my work has been upon behalf of people in very high levels of disadvantage whose fundamental rights are seriously threatened.  This includes:


  • Tenants and members of their family threatened by eviction often for comparatively modest levels of rent arrears.

  • People threatened with eviction for either disputed allegations of anti-social behaviour or forms of behaviour that “soberly” assessed do not justify the person concerned being thrown onto the streets.

  • People who are street homeless or forced to live in unsatisfactorily temporary accommodation, or who are struggling to move on to permanent accommodation.

  • People living in damp, cold and mouldy housing which is not only highly uncomfortable but also threatened their and their family’s  health.

  • People victimised by serious crimes of violence suffering life changing injuries.


I have also worked with colleagues who advise and represent people who are detained in hospital due to mental health problems or receiving compulsory treatment, as well as asylum seekers and trafficking victims.


These are just some examples. In all these areas, until the early 80’s, the individuals concerned either did not receive advice and representation or only with a great deal of difficulty.  However, interventionist governments in the 1970s and 80s passed legislation and created remedies and new rights for people. One of the most obvious innovations was the Tenants Rights Act 1980 along with statutes such as the Homeless Person Act 1977 which set out homeless people’s rights as well as the liberalisation of the Criminal Injuries Compensation Scheme that occurred in 1979.  Since then there have been, of course, many major reforms that cannot possibly all be mentioned here.  Some highlights include massive reforms to mental health law, immigration and asylum as well as of course, the reform of social security into a justiciable system rather than the operation of pure discretion. 


Literally thousands of new remedies have been created, for instance litigation regarding homelessness legislation directly led to the creation of judicial review as we now know it, as it made it an effective remedy and way of enforcing homeless people’s rights.


In the last 30 years the position has changed, sometimes dramatically, with many highly skilled solicitors and counsel devoting their careers to law of relevance to people in disadvantage.  For instance 30 years ago there might only have been 20 or 30 mental health law specialists and probably no more than an eccentric dozen housing lawyers.  Any text books were rare  and far between: in the early 80’s the most recent text book on recovery of possession was published 70 years before. The position is now wholly transformed although there are certainly still gaps in the literature.


So What is Access to Justice? What Does It Mean?


For me, and for other lawyers in Law Centres, access to justice is to do with making sure that people who are threatened with the worst possible consequences can obtain the advice, assistance and representation from a fully “booted and suited” lawyer prepared to take their arguments through all the relevant courts.  Obviously than means sustainable careers for the lawyers concerned.  This is a complex issue as, whilst there is generally a very high level of excellence in the legal profession, the perception is that the legal aid system is open to being mined to the maximum.  We need to have a discussion about how to get out of that perception. 


Of course there are other issues relating to access to justice but getting the right lawyer at the right time is the one I wish to concentrate upon now.


There are two principle means whereby the best form of access is funded in Scotland currently: Law Centres and Legal Aid. Often these go hand in hand.

 

The first is through direct financial support to Law Centres.  In that regard a number of Local Authorities, in the case of our Law Centre particularly Glasgow, Edinburgh and Inverclyde, have consistently provided support, as least in some specialist areas.  There has also been some government support.


That support is not enough to maintain Law Centres whilst the development of Law Centres outwith West/Central Scotland has been patchy.


For reasons I will discuss later, Law Centres cannot be funded only by legal aid for casework.  They must have a broader role.  I would call upon the Legal Aid Review to have a grant structure for Law Centres.  Currently there is no such national funding strategy.  We, and I mean the legal profession as a whole not just Law Centres, need such a strategy.


Legal Aid is the other means whereby access to justice can be maintained and of course this is much broader than just to Law Centres. While legal aid is important and necessary to allow people to vindicate their rights, the rates for legal aid are comparatively very low in relation to the private sector. This causes problems in terms of areas where legal aid is highly used, such as evictions and immigration.  Where there is insufficient legal aid funding this causes problems in terms of financial stability.


Access to Legal Aid and Law Centres is crucial for people who are excluded, who have no voice and whose rights and interests will be at the bottom of the agenda if they don’t have somebody pushing their case upon their behalf.


It needs to be emphasised, and lawyers will be familiar with this, that, of course, a right without a remedy is no right at all.  Public legal education and awareness of legal rights will not generate a remedy for people in the most extreme situations.  Of course, knowing things are wrong and that something can and should be done is the first step but it is most certainly not a sufficient one.


Access to justice, therefore, must mean a financially sustainable model to ensure that there are lawyers available who are specialised to allow people to access the courts and vindicate their rights.


A Human Rights Approach


Legal Aid of course generally assists people in circumstances which they and indeed everybody else would wish to avoid.


There is a tendency for all of us to “turn a blind eye” and ignore a minority of people who are systematically excluded and scapegoated.


It is, however, a fundamental principle of a humans rights approach that:


“The very reasons for establishing the new legal order, and for vesting the power of Judicial Review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.  Those who are entitled to claim this protection includes social outcasts and marginalised people of our society.  It is only if there is a willingness to protect the worst and weakest among us that all of us can be secure that our own rights will be protected” (my emphasis).


 

State V Makwanyane [1995] 1 LRC269 at 311 cited (a South African Case) with approval in Reyes V the Queen [2002] AC235 (quoted by Simon Collins then Advocate now Sheriff).

And there is no doubt whatsoever that, the Scottish Legal Profession has a commitment to this vision.  There is no doubt that without that commitment the circumstances of the most disadvantaged would be often times immeasurably  worse.


Lawyers generally are sensitive to the point that the defence of one person’s human rights elevates us all.  We need to publically consistently assert these views.


Lord Reid’s comments in R on the application of Unison (Appellant) V Lord Chancellor (Respondent)  [2017] UKSC51 can’t come as a surprise to any of us.  Nonetheless it is worthwhile quoting him.


“Courts exist in order to ensure that the laws made by parliament and the common law created by the courts themselves, are applied and enforced.  That role includes ensuring that the executive branch of Government carries out its functions in accordance with the law.  In order for the courts to perform that role, people must in principle have unimpeded access to them.  Without such access, laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.  This is why the courts do not merely provide a public service like any other”.


The same theme spanning a generation and half the world but basically making the same point as in State V Makwanyane.


So why doesn’t the legal profession boast about what we all have achieved through the Legal Aid System?.... or for that matter Law Centres?


Many commentators are of the view that the Scottish Legal Aid System is among the best in the world.  It assists tens of thousands of people a year, it provides a parachute that we all hope not to have to use but which we know is available if we need it and it funds a strong cohort of often excellent solicitors and advocates who have taken up difficult and demanding cases for a couple of generations and hopefully will continue to do so for the future.


For me one of the threats to access to justice is people forgetting this.  Being jaded by the excellence around them. Worrying about not bringing in as much in fees as solicitors working for private clients, in an environment where grant funding can be hard to come by and legal aid doesn’t cover the costs.


When talking and thinking about the challenges lawyers generally have, it must never be forgotten that the legal profession as a whole is one of the bulwarks that maintains our structure of rights and freedoms.


We need to BOAST about what we achieve, and the difference we can make to people’s lives..  We need to imaginatively assert the value of what we do.  Why do we find this so difficult?


Access to justice generally and legal aid in particular is a way of defending people who are often rubbished by the system and have no recourse to anything else.


At one point these sorts of views might have been regarded as controversial.  Now however given the dicta of the Supreme Court one can say that almost all I have said is either highly persuasive and binding in every court in the UK.


Whilst the Unison case did not deal with legal aid as such, in reference to Article 6 of the European Convention of Human Rights and its general approach it is clear that the Supreme Court thinks that:


“… One general point to note is that the emphasis placed by the Strasbourg Court on the protection of rights which are not theoretical and illusory, but practicable and effective”.


It is rare that the opinion of a Court can have such wide application and, of course, the opinion has much more relevance than just to Tribunal fees.  Indeed Lord Reid’s analysis of research about the minimum level of income, of single parents may require to live a decent life includes his view that a minimum of a £5 a week on alcohol would be reasonable (if so desired).


The quote from the Unison case aligns of course with a series of cases dealing with States obligations to provide civil legal aid.


In summary it appears that the duty is to ensure an acceptable “equality of arms”.


Following from the Unison case, it seems clear that this now includes the preparatory steps for a hearing and not just the hearing itself.


Reid and Murdoch at (571) put this as follows:


“Whilst reiterating that “it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-ὰ-vis the adversary”, the Court took into account the importance of the right of Freedom of Expression, the financial consequences for the applicants of failing to verify each defamatory statement made, the particularly lengthy duration of the proceedings and their legal complexity.  The conclusion was that the lack of legal aid had deprived them of the opportunity to present their case effectively and had “contributed to an unacceptable inequality of arms”.”


This discussion of course relates to the anti-MacDonald’s campaign case.  The dicta seems broad enough to give us guidance about its applicability to most other issues.


To push the metaphor too far: “equality of arms” clearly includes the right to access to a stone upon which to whet your weapon.


We plainly now need to think well beyond due process in working as 21st Century Lawyers.


So what should a 21st Century Lawyer do?


No I am not going to go on and on about paperless-ness.


IT IS IDEAS that are important.  People who are scapegoated , excluded outcast or highly disadvantaged need more from us solicitors than a simple traditional solicitor-client relationship.


Big Companies, Housing Association, Social Work and Government, for instance all have lawyers telling them about new potential threats and remedies.  They all have lawyers telling them how prospective changes may affect them in the future.


Our duty to people who come within the legal aid sector of society is to ensure that they too are well briefed.


That is something that all good lawyers can do.  It is however a core legal aid responsibility.  It is one that Law Centres need to be funded to do.  It is a function that is in the interests of the whole of the legal profession and in particular other lawyers undertaking legal aid.


Without a pro-active approach huge areas of law with not develop.


This includes Employment Law including Equalities and the new tough regulatory regimes for instance the Scottish Social Services Council, benefits matters not covered by advice agencies, environmental law: these are just some examples.


Law Centres in the past are proud of the developmental work we have done.  This needs to be built upon for the future.


So being a 21st Century Lawyer in an access to justice role is not just about casework. It is about creativity and imagination, and driving forward new remedies for vulnerable clients.


I can say confidently that the remedy seeking approach is the only means whereby we can assure full equality of arms for all in disadvantage.


 To conclude I would like to repeat a point Lord Reid makes …. it sounds like a slogan.


“Without such access to the Courts, laws are liable to become a dead letter the democratic election of members of parliament may become a meaningless charade”.


MP’s and MSP’s need to support us more!  Democracy requires it!


In any event I would like to end with a slogan of my own…. “BOAST – NEVER MOAN”.