Are we headed towards an access to justice crisis?

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(ANDREW COWIE/AFP/Getty Images)

Good news for Osborne in time for the release of the Autumn statement next week; the National Audit Office announced on Friday that the legal aid cuts will save the government £30 million more than planned- a total saving of £300 million. For Justice Secretary Grayling and the coalition this is evidence of the Legal Aid, Sentencing and Punishment of Offenders Act-which brought huge legal aid cuts into force in April 2013-exceeding expectations. This can only be good news for the Treasury, right?

Wrong. A closer look at the impact of the government’s ‘slash and burn’ tactics reveals a more troubling picture. The proportion of publicly funded civil cases fell by 46% from 2013-14 compared with the previous year. This would perhaps be considered a success were this decrease balanced by an increase in the use of out of court alternative dispute resolution methods. However, the NAO reported a 38% fall in the number of mediation cases over the same period. Evidently more needs to be done to promote alternative dispute resolution, and the government could start by placing more support behind initiatives such as this week’s ‘National Dispute Resolution Week’.

Having more parties mediating their matters will not however solve the problem of an increased number of litigants in person (LIPs) taking their cases through the courts. Take, for example, a father who is estranged from his wife, with whom he has a young child. Dad would like nothing more than to continue having a relationship with his son. Unfortunately he and mum are unable to reach an agreement and so, as is often the case, they find themselves arguing it out in court. There are a few important details that make this case unique; the father is a convicted child sex offender. He does not speak English. And the Legal Aid Agency decides he should not receive legal aid to fund legal representation or to provide an interpreter, because they do not think he has any prospect of winning contact with his child. How can we expect a judge to conduct a fair and just legal process when one party has legal representation and the other does not; and when that other party cannot even understand or communicate in the language the proceedings are being conducted in?

The head of High Court’s Family Division, Sir James Munby, was faced with these very questions in the case of Q v Q earlier this year, which he adjourned to invite the justice secretary Chris Grayling to consider how the case could continue. Munby suggested the cost of an interpreter should be covered by HMCTs; in other words coming out of another section of the public purse. This suggests that for LIPs that require interpreters or specialist reports, the only options available are either public funds being provided by sources other than the Legal Aid Agency; or judges wading through proceedings in the hope of concluding them fairly. This not only results in making courts more sluggish and congested, but also sets the course for our justice system to become rife with inequality. It would appear we are heading us towards an access to justice crisis.

What are needed are ministers brave enough to tackle this problem. The shadow justice secretary Sadiq Khan recently stated that “people’s confidence in our justice system is being undermined as it becomes the preserve of the rich”. He has not however been so vocal about suggesting an alternative. Sir Keir Starmer recently stated at the Hodge Jones & Allen’s Innovation in Law event that a good start would be to return to the pre-cuts era. This suggestion however fails to deal with the overspending associated with the former setup. A justice secretary is needed who is willing to be creative about how to address the issues with the new legal aid system, and be innovative in providing solutions.

A good start would be by giving responsibility to local government to provide interpreters for constituents that find themselves in court. In a similar way to the tenders for legal aid contracts, local authorities could agree contracts with companies providing interpreters, paying them the equivalent of legal aid rates. Courts should accept that they will now have the added responsibility of being a source of information for litigants in person, and to this effect, should supply booklets on court procedures, applications and deadlines; all in the most common languages of the citizens in the area. The MOJ could take a leaf out of the CAB’s book by providing an online advice guide that provides accessible information on how a litigant in person can best present their case, and what to avoid – this could be done by reinvesting some of the extra savings made by the cuts.

Ultimately, this does not solve the problem of a lack of legally qualified representation at court. Educating our population on their rights and responsibilities would however go a long way to tackling what will otherwise become an increasingly inaccessible justice system.