A Fresh and Serious Look

Charles Falconer and Willy Bach write:

Britain’s most senior judge, Lord Thomas of Cwmgiedd, wrote last week that “our justice system has become unaffordable to most”. 

It’s a remarkable statement for the lord chief justice to make. But unfortunately it’s right. 

In Britain, in the 21st century, a growing number of people can’t afford to defend themselves and make sure their rights are respected. The facts are startling.

In 2009-10, more than 470,000 people received advice or assistance for social welfare issues.

By 2013-14, the year after the government’s reforms to legal aid came into force, that number had fallen to less than 53,000 – a drop of nearly 90%. 

At the same time, tribunal fees have been introduced and court fees increased, time and again. 

Advice centres – which provide straightforward guidance on legal problems – have closed across the country.

And the “exceptional funding scheme” – the government’s “safety net” for the most vulnerable – has helped a mere eight children since it was created.

Legal aid has often been in the news associated with controversial cases or “fat-cat” lawyers.

In reality, the vast majority of the hundreds of thousands, if not millions, of people who need and no longer have access to legal advice are ordinary people dealing with everyday issues that could affect any of us.

They are the small businesses facing bankruptcy because court fees mean they can’t chase unpaid debts; the parents denied access to their children because they’re not able to take their partner to court; the elderly man with dementia forced out of his home because he can’t stand up to the local authority on his own; the victim of domestic abuse trapped with their abuser because the alternative is to face them directly in court.

Individuals across the country are suffering. But the lack of access of justice also has wide-ranging implications for our society as a whole. 

A recent Citizens’ Advice research report found that only 39% believe the justice system works well for citizens and only 17% believe it’s easy for people on low incomes to access justice.

A strong and reliable justice system is key to a secure society and a growing economy.

The success of our society relies in large part on the trust we all put in the rule of law and the knowledge that the courts will be there to enforce our rights should something go wrong.

When that trust breaks down, the fundamental principle of the rule of the law is being eroded. It is urgent that something is done but this government is just burying its head in the sand. 

That’s why, back in September, Labour decided to launch its review into the future of legal aid.

And this week we are announcing that we will be working with the Fabian Society and a newly formed commission of experts – chosen strictly for their expertise and not their political leanings – to start to make progress on this crucial matter.

Our commission will examine both the principles that should underpin a modern legal aid system and the practical ways that such a system should operate, given the great demand for legal services and inevitably limited resources. 

We will hear from experts from the law, civil society and academia as well as from citizens who have had experiences, both good and bad, of how the system works in practice.

We are determined to be collaborative, inclusive and innovative. It has been far too long since a major political party took a fresh and serious look at such a vital, national resource.

We will not shy away from uncomfortable truths. We cannot just revert to the old system; that too was far from perfect.

We must look at technological change as a benefit to be grasped rather than something to be afraid of. We must use the great work already done in this area by among others the independent Low Commission, the Legal Aid Practitioners Group and the Law Society.

We need to develop policies that will stand the test of time, but we also want to influence the present government to change some of the worst effects of their policies.

When our commission reports this autumn, its findings will feed into Labour’s policy review. But we want it to go wider than that – our aim is to build a coalition of support across the political divide.

Beveridge pioneered the welfare state to counteract what he called the “five giant evils” of his time – squalor, ignorance, want, idleness, and disease.

The lack of access to justice is increasingly becoming another great evil of 21st century Britain. 

Just as we all accept the need for the state to provide a right to healthcare, to a decent education or to social security protections when genuinely needed, we must argue for access to justice – the right for every person who believes themselves dealt with unlawfully, particularly by powerful institutions, both private and public, to receive quality advice – as a fundamental right and key public entitlement. 

We believe there should be minimum guarantees to which every citizen is entitled when it comes to enforcing their rights – otherwise they are worthless.

For decades, there was a broad consensus about legal aid and the beneficial effects it had on our legal system.

That consensus has regrettably broken down. We hope to make a start in rebuilding it.