13 March 2015, The Tablet

We’ve sold off justice

by Andrew Caplen

“One law for the rich, no law for the poor” may seem to be an alarming statement when used to describe our own legal system. However, successive governments’ policies are making it increasingly difficult for ordinary citizens to access the courts – that is, unless they have substantial means or are prepared and able to represent themselves.

The are two prime reasons for this. Firstly, the Legal Aid budget has come under increased scrutiny on the basis of the need for financial austerity. Thus the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took many previously funded matters “out of scope” and has restricted advice and assistance in other areas. Secondly, the soon-to-be-imposed increase in court fees is very likely to make it even more difficult for ordinary citizens – and small and medium-sized businesses – to obtain justice.

The cuts in scope of the matters for which Legal Aid is available have been severe. Publicly funded legal advice and assistance is now rarely available in a number of areas of law, including clinical negligence, employment, family law, housing law and debt, immigration, education and welfare benefit matters. That means it is no longer available in most divorce cases or cases about contact between parents and children with whom they no longer live. There are exceptions in each of these categories – but only a very limited number.

The report I have co-authored for the think-tank Theos, Speaking Up - Defending and Delivering Access to Justice Today, which is co-signed by the Catholic bishop for prisons, Richard Moth, warns: “The rule of law is at risk if there is anyone in society who cannot get a fair hearing in the courts; the stability of society is under threat when there are ‘no go’ areas whose inhabitants have no access to justice.”

These recent and pending changes run contrary to the post Second World War welfare reforms. In a 1948 Commons debate on the Legal Aid and Advice Bill, the then-Attorney-General, Sir Hartley Shawcross, began by saying: “It is a bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay.” The driving force was the desire to ensure that everybody, regardless of wealth and status, could access justice.

Election campaigns in this country do not tend to be fought on issues of justice. Law and order, perhaps; certainly health, education, and, of course, the economy. Is this because legal issues only concern us when we are directly involved, when it our right to justice that is being denied?

And should the Church be concerned at the effects that these cuts are having and will have on some of the most vulnerable and marginalised in society? Do we have a role, a responsibility?

Proverbs 31:8-9 makes this clear. “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”

Certainly the Theos report suggests that we do just that: access to justice should be high on the priority of the Government, the Churches, the legal profession and the public.

Andrew Caplen is the President of the Law Society of England and Wales

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User comments (1)

Comment by: Denis
Posted: 14/03/2015 08:37:32

The legal profession, like others, is profit driven. Take employment law. It will always provide help for the well paid precisely because it is financially rewarding to do so. This incentive is missing when the litigant is a female and they usually are, toilet cleaner on minimum wage. Add to this the likes of Michael Mansfield, who did very nicely from legal aid work and the public perception, however unfair, is of financially very secure lawyers grumbling because the cash dispenser has broken down.

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