Lord Neuberger on Access to Justice
“The rule of law together with democracy is one of the two principal columns on which a civilised modern society is based. It is simply wrong, and fundamentally wrong at that, if ordinary citizens and businesses are unable to obtain competent legal advice as to their legal rights and obligations, and competent legal representation to enforce and protect those rights and test those obligations in court. Obtaining advice and representation does not merely mean that competent lawyers exist; it also must mean that their advice and representation are sensibly affordable to ordinary people and businesses: access to justice is a practical, not a hypothetical, requirement. And if it does not exist, society will eventually start to fragment.
That is not merely a fragmentation in the sense of the gulf between rich and poor, which leads to real frictions and difficulties if it gets too wide. It is a fragmentation which arises when people lose faith in the legal system: they then lose faith in the rule of law, and that really does undermine society. The sad truth is that in countries with a long peaceful and democratic history such as the UK (and, I suspect, Australia), we face the serious risk that the rule of law is first taken for granted, is next consequently ignored, and is then lost, and only then does everyone realise how absolutely fundamental it was to society.”
Lord Neuberger, Address to the Australian Bar Association Biennial Conference, London, 3 July 2017
Strong words from a sitting judge – but (Lord) David Neuberger is no ordinary judge. As President of the UK Supreme Court, he has been campaigning to promote access to justice for many years. Possibly no British judge since Lord Denning has understood, and been concerned by, this topic as much as he.
In parts witty and humane, and quick to emphasise the close legal heritage shared by the UK and Australia, the speech clearly charmed those members of the Australian bar that made the journey to London. But they may have been surprised by the forthright criticism reserved for political decisions to steadily cut the availability of UK legal aid over the past 20 years, which have left “many people being faced with the unedifying choice of being driven from the courts or having to represent themselves” [11] – and the courts struggling to cope with the weight of litigants in person.
Ironically, these cuts have come at a time when individual rights are better protected by the law than ever before, thanks for example to the European Convention on Human Rights. But herein lies the crucial point: the justice system will not provide justice unless it is equally accessible to all. Or as the Oxford law professor Frederick Wilmot-Smith has put it, “the distribution of access itself is a matter of justice.” In one of his most striking lines, Lord Neuberger said:
“It verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable. It has faint echoes of the familiar and depressing sight of repressive totalitarian regimes producing wonderful constitutions and then ignoring them […] whether we are members of the legislature, the executive, the judiciary or the legal profession, we are under a solemn duty to speak up for and to do all that we properly and reasonably can to support access to justice.” [8-9]
No doubt this would have raised applause in the room, perhaps even a loud “hear hear”. For many, still fresh in the memory is the recent failure of the then Lord Chancellor Liz Truss to stand up for the judiciary labelled “enemies of the people” by the Daily Mail because they held that the British constitution required a Parliamentary vote on the terms of Brexit (a decision subsequently upheld by Neuberger’s Supreme Court). And, as the President of the ABA pointed out, the problem is not unique to the UK: in Australia, “legal assistance services are increasingly under-resourced leaving thousands of Australians without adequate access to quality legal advice and assistance” [4].
In this context, Lord Neuberger gave a nod to the role played by litigation funding. In previous speeches, his Lordship has referred to funding as the “lifeblood of the justice system” (see here for example, at [52]). In this latest speech, he expressed the view that funding was “a useful model” [14], and one that could be adapted more widely, for example:
- Greater use of self-funding clubs, such as PI clubs in the shipping arena and the Jockey Club in Hong Kong, where members agree to pay into a fund to cover their litigation expenses.
- A “privately funded charitable scheme” for “poorer people and small businesses” – which perhaps could take the form of a joint venture between governments and commercial funders.
- Simple amendments to legislation to require legally aided claimants to pay a portion of any successful damages back into the legal aid fund (an opportunity that was sadly missed in both the Access to Justice Act 1999 and LASPO 2012).
Such reforms will of course not work in isolation: the cost of litigation remains too high, and more work is needed to drive costs down. Encouraged by the work of Professor Richard Susskind (who spoke on this topic in Sydney last year), the UK courts are set to trial an online dispute resolution system (ODR) for lower value claims, similar to the model successfully employed by eBay for many years. Those familiar with mediation (and to a lesser extent arbitration) may relate to his Lordship’s view [18] that rough and quick justice is better than no justice at all.
Legal aid was introduced in the UK in 1949, as part of the same Attlee / Bevan / Morrison reforms that led to the National Health Service. The founding principle in the 1949 act was that “no one will be financially unable to prosecute a just and reasonable claim or defend a legal right”. 68 years later, it is salutary to hear a senior judge suggest that we may have gone backwards.