Problems of the Access to Justice in the UK's Legal System

In An Age Of Austerity, Access To Justice Is A Luxury

Author: Suchana Chowdhury Suchi

Keywords: Legal Aid; Access to Justice; English Legal System; Equal Opportunity; Human Rights; Legal Aid Sentencing and Punishment of Offenders Act 2012; Welfare State; Age of Austerity; Justice Is Luxury.

ABSTRACT

The continuous reduction of legal aid funding has raised question whether the UK is denying its citizen’s access to justice and missing its rule of welfare state. It had been put into practice since the second half of the twentieth century, where the indigenous people, unable to afford the cost of access to justice, were granted legal aid funding with public money. Access to justice is no more prioritised like education, healthcare, and social security to utilise taxpayer’s money, while legal advice cost of barristers and solicitors has accelerated at a higher rate. Although equal opportunity and human rights are the two major focal points of English Legal System, austerity caused by economic downturn made it difficult to balance the spending of public money for common necessities of the society and curtailed legal aid. Thus, access to justice is far away from essential needs, and just a luxury for the poor people, which may bring lawlessness in the society.

In October last year, activists from 'UK Uncut' held protests across Britain – surprisingly, during blockade outside Royal Courts of Justice, mock trial of Justice Secretary Chris Grayling has also been conducted, with the Group claiming that Ministry of Justice’s plan to save £220 million annually from legal aid bill by 2018 would ‘block access to justice for millions of people’.¹ According to The Guardian, Etkind, a member of the group, expressed worries that steps to curtail this public expenditure would prevent poor, disabled, and susceptible people such as abused woman and other refuge seekers from accessing justice,² which, certainly would boost and promote social disparity.³

The Conservative-led coalition government put forward the most severe cutback in public expenditure, which exceeded austerity actions taken by other countries that are going through similar troubles; idea to cutback of £81 billion over four-year period was equivalent to four and a half percent of the estimated GDP of 2014–2015, while deficit was approximately 10% of 2010–2011 GDP.⁴ However, there are plans to lengthen austerity until 2020,⁵ whilst 70% of the fund would be extracted from spending-curtails rather than tax rises⁶ – Chancellor of the Exchequer, George Osborne, for example, declared £7bn decrease in welfare-support and 490,000 public-sector job cuts by 2014-2015,⁷ while David Cameron is interested to restrict citizens’ and organisations’ rights to challenge decisions by judicial review.⁸ MoJ spokesperson said defendants with disposable earning of £37,500 or above would not be legally aided, and prisoners' legal aid right will be barred because legal aid costs taxpayers around £2bn annually; he added that while all industries and households feel fiscal crises, legal system could not be unaffected from the pledge to obtain better value of taxpayers' money.⁹

Today’s European austerity roots from the rise of sovereign debt that started during the global economic turmoil of 2008 – the abrupt expenditure of ‘bail outs’ and succeeding slowdown of growth, accompanied by cost of automatic stabilizers have ruined debt-dynamics of EU nations;¹⁰ moreover, governmental expenses amplified sooner than economic growth, allowing debt as a proportion of GDP to grow promptly.¹¹ During 2007-2011, debt in 28 European Union countries augmented from 69% to 95%; however, UK politicians were particularly worried since the Greek mishap about investors’ keenness to hold UK-debt – so austerity was the mode to reinstate fiscal buoyancy stimulating growth and venture, minimising budget deficits, making investors more confident, and accordingly enlivening government’s finances by lowering public sector services.¹²

While diehard economists are favouring austerity, people will surely be under angst due to skimpy public services and rising expenses from their pockets to private sector service providers. When it comes to public expenditure curtails in the legal system, it is essential to consider what impact austerities are having on the justice seekers.

Legal Aid Sentencing and Punishment of Offenders Act 2012 took effect from April 2013 supporting curtails to legal aid by £320 million from 2014 and £220 million annually by 2018 – consequently, prisoners and individuals from households with disposable-earnings of above £3000 per month will not get legal aid,¹³ besides of migrants without legitimate residency for one year.¹⁴ Sir Alan Beith noted that these would unduly smack vulnerable people, and numerous MPs stated that making eligibility for legal aid reliant on domestic hostility in divorce and custody cases will promote fake allegations;¹⁵ yet, Viviane Reding, Vice-President of European Commission, emphasized that ‘Even when cuts are painful we should ensure that basic standards of justice are never compromised’.¹⁶

While fees at leading law firms are now twice as much as the fees in last decade, with hourly rate of £850, and while it is not only the senior lawyers who are charging high (new lawyers are charging up to £425),¹⁷ it is dubious whether drastically helpless individuals will get access to justice without being legally aided. Government, instead, abridged fees of government-funded barristers’ and solicitors’ by 6% and 17 , 5% respectively, which has sparked protests of more than 1,000 disgruntled lawyers outside the parliament,¹⁸ whereas it is uncertain whether justice seekers who are now ineligible for legal aid could afford legal fees since they will now need to visit the costly lawyers in the city.

The question is whether justice is getting inaccessible for the poor: Lord Neuberger stated that task of reducing claim-categories appropriate for legal aid and extending individuals’ eligibility-requirements are done simultaneously – if prospective claims cannot get legal aid, there will be ‘denial of justice’ and ‘blot on the rule of law’;¹⁹ moreover, his lordship urged not to limit judicial review rights.²⁰

Judicial Executive Board states curtails are amplifying court’s expenses and creating supplementary cases and lengthy proceedings;²¹ moreover, Family Court Unions Parliamentary Group suggests that number of people who are incapable to pay for a lawyer to stand for themselves rose significantly:²² – according to survey of almost 500 justices, 46% of those represented by lawyers in private family-courts are now self-representing.²³ Lawyers think self-representation is generating injustice where one parent is legally-represented and the other is self-representing;²⁴ furthermore, family law specialists say austerity-measures over legal system is actually traumatising a generation of children, and kids from furious-homes are in grave hazard – a lawyer explained that before curtails, tortured-mothers came to her daily to seek instant-actions to protect kids.²⁵ Now, they first visit court to obtain restriction-order before getting entitled to legal aid, so courts are handling two cases rather than one; moreover, her co-worker, who saw situations where mother was killed by father, apprehended that fiscal load is imposed upon incredibly immature and defenceless kids living in poverty.²⁶

Is ‘access to justice’ truly a luxury today – while the answer is left to be resolved, better understanding of the present-day scenario is certainly crucial.

Liz, a 16-year-old mother, was in hardship with her 1-year-old child, Emily, and as they lived with Liz’s mother who was alcoholic, Liz requested Emily’s father to take care of the infant, while putting herself in foster care; however, in response to Liz’s request, Emily’s paternal grandmother blamed Liz of household violence, and filed legal claim for Emily’s guardianship.²⁷ Meanwhile, Liz was in foster care: she did not challenge the allegations or understand the language of legal papers; therefore, she wanted lawyer’s support, but was labelled ineligible for legal aid; moreover, she did not have enough to fund lawyer’s fees, so eventually, she had to self-represent against an expert lawyer, and the entire incident left her in extreme distress.²⁸

Today, those who are losing are poor individuals – adolescents in care, unemployed, homeless, migrants, and disabled: 16-year-old Ellen, for example, was molested while in care of local authority; she was disallowed from legal aid, and her choice was to rely on social-services– but here, this was the same authority that failed to protect her, so finally the case crumpled.²⁹

While women's groups are stressing on how austerity is barricading in victims' way towards justice,³⁰ relatively fewer people are standing for disabled people, for whom the curbs mean additional financial scarcity³¹ – to put simply, Miscarriage of Justice can get widespread in the upcoming years.³²

Demonstrators protesting on streets against austerity over legal system carried placards, stating 'Justice for all, not just for the rich'³³ – the slogan reminds of Karl Marx, while the consequences of enacting ‘LASPO’ seems to provide factual evidence in favour of the Marxist ideas. Marx believed that law arise from economic class distinctions within the society; he suggested that in capitalist society, ‘the rich get richer, and the poor get poorer’³⁴ – in this post-LASPO era, huge financial burdens are imposed on deprived classes, while the rich are getting opportunity to strengthen their wealth. While massive austerity measure over public spending has been undertaken to recover an economy damaged by global financial crisis, in 2012 budget, taxations for the 300,000 richest families were reduced by 45%,³⁵ and tax-reduction of 34,600,000 pounds was declared for 643 bankers in 2013 with income of above one million.³⁶ Lenin described ‘state’ as an organ of class-domination – it legalizes repression by mediating class-collisions; so, it inflicts law to quieten these turbulence;³⁷ earlier, in Communist Manifesto, Marx criticized law as reflection of the wishes of ruling class:³⁸ – being made in the modern democracy, is LASPO showing the traits of Marx’s obsolescent thinking?

Long ago, Sir James Mathew jested that in England, justice is open to everyone – in 1949, to promote rule of law, legal aid was instigated, which authenticated Sir Dicey’s idea that a basic notion of rule of law is that everyone is equal in the eye of law irrespective of rank; however, LASPO is not equal for all – noble laureate Professor Joseph Stiglitz has requested lawyers to protect access to justice whilst austerity harms rule of law.³⁹

[...]

¹ BBC News, ‘Legal Aid Protests Held by UK Uncut’ (5 October 2013) <http://www.bbc.com/news/uk-24410807> accessed 02 September 2014.

² Peter Walker, ‘UK Uncut Plans Legal Aid Protests across Britain’ The Guardian (London, 4 October 2013) <http://www.theguardian.com/law/2013/oct/04/uk-uncut-legal-aid-protests-austerity-london> accessed 02 September 2014.

³ Betsy Donald and others, ‘Austerity in the city: economic crisis and urban service decline?’ (2014) 7 Cambridge Journal of Regions, Economy and Society <http://cjres.oxfordjournals.org/content/7/1/3.full.pdf+html> accessed 4 September 2014.

⁴ Daniel Pimlott, Chris Giles and Robin Harding, ‘UK Unveils Dramatic Austerity Measures’ Financial Times (London, 20 October 2010) <http://www.ft.com/cms/s/0/53fe06e2-dc98-11df-84f5-00144feabdc0.html#axzz3CDnvLtOy> accessed 03 September 2014.

⁵ Andrew Grice, 'Austerity to Last Until 2020: Expect Hard Times for a Decade, Say Think Tanks' The Independent (London, 07 June 2013) <http://www.independent.co.uk/news/uk/politics/austerity-to-last-until-2020-expect-hard-times-for-a-decade-say-think-tanks-8649455.html> accessed 03 September 2014.

⁶ Richard Harries, ‘Austerity Government Means a New Approach to Public Services’ The Guardian (London, 2 October 2013) <http://www.theguardian.com/society/2013/oct/02/austerity-government-approach-public-services-cuts> accessed 03 September 2014.

⁷ Pimlott (n 3).

⁸ Patrick Wintour and Owen Bowcott, 'David Cameron Plans Broad Clampdown on Judicial Review Rights' The Guardian (London, 19 November 2012) <http://www.theguardian.com/politics/2012/nov/19/david-cameron-clampdown-judicial-review> accessed 03 September 2014.

⁹ BBC News (n 1).

¹⁰ Lawrence King and others, ‘Making the Same Mistake Again—or Is This Time Different?’ (2012) 36 Cambridge Journal of Economics <http://cje.oxfordjournals.org/content/36/1/1.full.pdf+html> accessed 4 September 2014.

¹¹ European Union Center of North Carolina, ‘Policy Area: The Politics of Austerity’ (6 August 2013) <http://europe.unc.edu/wp-content/uploads/2013/09/Brief1308-austerity.pdf> accessed 04 September 2014.

¹² Walt Borges and others, 'The Politics of Austerity: Modeling British Attitudes towards Public Spending Cuts' (7 April 2012) <http://www.bes2009-10.org/papers/austeritypolitics.pdf> accessed 04 September 2014.

¹³ 'Legal Aid Cuts and Reforms' (Chambers Student, November 2013) <http://www.chambersstudent.co.uk/Articles/Newsletter/1155#The%20future%20of%20legal%20aid%20law> accessed 05 September 2014.

¹⁴ Patrick Hennessy, 'Legal Aid Curb for Foreign Migrants' The Telegraph (London, 06 April 2013) <http://www.telegraph.co.uk/news/politics/9976786/Legal-aid-curb-for-foreign-migrants.html> accessed 07 September 2014.

¹⁵ Owen Bowcott, 'MPs Warn against Legal Aid Reforms in Divorce Cases' The Guardian (London, 30 March 2011) <http://www.theguardian.com/law/2011/mar/30/legal-aid-divorce-cases-warning-mps?guni=Article:in%20body%20link> accessed 06 September 2014.

¹⁶ Viviane Reding, 'Justice in Times of Austerity – Safeguarding the Efficient Protection of Rights' (Seminar of the General Council of the Bar, London, 20 June 2011) <http://www.barcouncil.org.uk/media/100356/justice_in_times_of_austerity.pdf> accessed 07 September 2014.

¹⁷ Jonathan Owen, 'Justice Costs: Fury as Lawyers’ Fees Top £850 An Hour' The Independent (London, 26 November 2013) <http://www.independent.co.uk/news/uk/home-news/justice-costs-fury-as-lawyers-fees-top-850an-hour-8965339.html> accessed 08 September 2014.

¹⁸ Owen Bowcott and Nicola Brown, ‘More Than 1,000 Lawyers Protest Outside Parliament At Legal Aid Cuts’ The Guardian (London, 7 March 2014) <http://www.theguardian.com/law/2014/mar/07/lawyers-protest-parliament-legal-aid-cuts> accessed 08 September 2014.

¹⁹ Lord Neuberger, 'Justice in an Age of Austerity' (JUSTICE Tom Sargant memorial annual lecture 2013, London, 15 October 2013) <http://www.justice.org.uk/data/files/resources/357/Neuberger-2013-lecture.pdf> accessed 09 September 2014.

²⁰ Claire Carter, 'Lord Neuberger: Don't Restrict Right to Judicial Review' The Telegraph (London, 15 October 2013) <http://www.telegraph.co.uk/news/uknews/law-and-order/10381743/Lord-Neuberger-Dont-restrict-right-to-judicial-review.html> accessed 09 September 2014.

²¹ John Hyde, 'Leading Judges in Damning Attack on Civil Aid Cuts' The Law Society Gazette (London, 14 May 2014) <http://www.lawgazette.co.uk/law/leading-judges-in-damning-attack-on-civil-aid-cuts/5041248.article> accessed 09 September 2014.

²² Family Court Unions Parliamentary Group, 'The Impact of Legal Aid Cuts on Family Justice' (London, April 2014) <https://www.napo.org.uk/sites/default/files/The%20Impact%20of%20Legal%20Aid%20Cuts%20on%20Family%20Justice.pdf> accessed 09 September 2014.

²³ Maeve McClenaghan and Oliver Wright, 'Children Suffer As Cuts to Legal Aid Penalise Parents in Court' The Independent (London, 01 June 2014) <http://www.independent.co.uk/news/uk/home-news/children-suffer-as-cuts-to-legal-aid-penalise-parents-in-court-9466727.html> accessed 09 September 2014.

²⁴ ibid 1.

²⁵ Terri Judd and Kashmira Gander, 'Legal Aid Cuts Put a Generation of Children in Danger' The Independent (London, 02 June 2013) <http://www.independent.co.uk/life-style/health-and-families/health-news/legal-aid-cuts-put-a-generation-of-children-in-danger-8640801.html> accessed 09 September 2014.

²⁶ ibid 1.

²⁷ Samira Shackle, 'How Legal Aid Cuts Are Harming the Voiceless and Most Vulnerable' New Statesman (London, 13 January 2014) <http://www.newstatesman.com/politics/2014/01/how-legal-aid-cuts-are-harming-voiceless-and-most-vulnerable> accessed 10 September 2014.

²⁸ ibid 1

²⁹ ibid 1

³⁰ Mary O'Hara, 'Legal Aid Cuts Are Devastating to Women, Especially Those Suffering Abuse' The Guardian (London, 3 December 2013) <http://www.theguardian.com/society/2013/dec/03/legal-aid-cuts-devastating-to-women-abuse-victims> accessed 10 September 2014.

³¹ Kathy Peach, 'Cuts to Legal Aid Will Push Disabled People Further Into Poverty' The Guardian (London, 22 December 2011) <http://www.theguardian.com/society/joepublic/2011/dec/22/legal-aid-cuts> accessed 10 September 2014.

³² Saba Salman, 'Legal Aid Cuts: a Return to Widespread Miscarriages of Justice' The Guardian (London, 2 July 2013) <http://www.theguardian.com/society/2013/jul/02/legal-aid-cuts-widespread-miscarriages-justice?commentpage=1> accessed 06 September 2014.

³³ Jon Robins, 'Justice for All. Not Just for the Rich' The Justice Gap (London, May 2013) <http://thejusticegap.com/2013/05/justice-for-all-not-just-for-the-rich/> accessed 10 September 2014.

³⁴ Karl Marx and Frederick Engels, Collected Works, vol 40 (International Publishers 1976) 6:494-5.

³⁵ Patrick Wintour and Larry Elliott, 'Budget 2012: Pensioners Fund Tax Cut' The Guardian (London, 21 March 2012) <http://www.theguardian.com/uk/2012/mar/21/budget-2012-pensioners-tax-cut> accessed 11 September 2014.

³⁶ Patrick Wintour, 'Hundreds of Bankers to Save Average £54,000 a Year Through Tax Cut' The Guardian (London, 5 April 2013) <http://www.theguardian.com/business/2013/apr/05/hundreds-bankers-save-tax-cut> accessed 11 September 2014.

³⁷ Vladimir Ilyich Lenin, The State and Revolution (International Publishers 1932) 9.

³⁸ Marx and Engels (n 6:501).

³⁹ Paul Rogerson, ‘Austerity a Challenge to Rule of Law Says Nobel Prizewinner' The Law Society Gazette (London, 1 October 2012) <http://www.lawgazette.co.uk/67581.article> accessed 12 September 2014.