In the course of her Henry Hodge Memorial Lecture at the Law Society in June of last year, Baroness Hale recalled Lord Justice Mathew’s aphorism that “in England, justice is open to all — like the Ritz”. I don’t know about the Ritz — I don’t get there that often, entirely through pressure of work, you understand — but sadly, for the past few years, justice has enforced an ever-stricter door policy; almost literally, now that we are getting accustomed to talking about “gateways”.
There has been some interesting research on the adequacy of the proposed domestic violence gateways which has appeared today, and which I want to comment on in more detail later, but looking back again at Lady Hale’s lecture (which you can find here) has prompted me to give you a bit of a flavour of it, because it remains an important comment on the changing situation, and because to my disappointment it wasn’t terribly well reported at the time. It was covered by most of the legal press, but almost entirely for the eye-catching claim that the public funding cuts would affect the poor disproportionately. In fact, her lecture made it clear that even one of the highest judges in the land now has serious concerns not only about how restrictive the access has become, but what the effects of that restriction will be.
The lecture was entitled “Equal Access to Justice in the Big Society”, and as I’ve already noted it predictably caught most headlines for the statement that the Legal Aid reforms will “have a disproportionate effect on the poorest and most vulnerable in society”. Rightly so; this was bold, plain speaking. It was bold, also, to place the issue of access to justice (which, as she pointed out, is not quite the same thing as access to lawyers) in the context of the “Big Society”, that politically radioactive concept which continues to divide the populace. In fact, the only time she referred to the Big Society by name is in the title of the lecture, but she had a number of interesting reservations about the current plans for the Legal Aid system which make it clear that she believes that they cut across and impede the stated “Big Society” objectives. If the Big Society is about anything, it is surely intended to be about social inclusion, but she made the point a number of times throughout her speech that the Legal Aid reforms will probably have the practical effect of barring access to justice for many people, and that result is, in effect, social exclusion. Just after she has noted in the speech that the effect on the poorest and most vulnerable will be disproportionate, she quotes (without comment) Legal Action‘s concern that “this would lead to an underclass of people disenfranchised from justice and indifferent to the rule of law”, and notes herself that
“the idea, recently floated, that some claims recognised by the law should become non-justiciable in our courts is truly alarming. This would turn debts and other legal duties into voluntary obligations, binding in honour only. And we know what risks of truly alternative enforcement mechanisms those can bring.”
Strains of the theme from The Godfather: but of course her point is a valid one. If you leave, say, debt collection and the general law of obligations to be dealt with by means of self-help, guided by ideas of honour and loyalty which may be fairly rough and ready, bad things tend to happen. As she also remarks, this idea runs counter to the “no right without remedy” principle set out in Ashby v White over 300 years ago (in 1702, in fact). This new idea is therefore, in its proper context, (but this is my gloss on what Lady Hale is saying) a truly revolutionary one. There is something rather sinister about this concept of a legal system which admits that it cannot afford, for reasons of lack of money, time or other resources, to provide an adequate remedy in response to a legal right. Note that it is not the resources of the parties which are being questioned, but the resources of the process. It is an admission of a systemic failure which is, in its own way, a quiet catastrophe.
She considered the various alternative routes to justice, other than lawyering up, but overall her conclusions were gloomy. Tribunals have not worked out to be as simple or as cheap as was first hoped, in part because the system has had to be restructured to reinforce the concepts of independence from the state and impartiality. Mediation is, she thinks, suitable and indeed preferable for family disputes (“no family judge who has had to decide who will pick the children up from school thinks that this is a sensible way to do things”), but possibly not such a great idea for other disputes, particularly where it is forced on the parties. What about their Article 6 rights to access a court?
She is also concerned that compulsory mediation can reinforce the power imbalances between the parties unless it is “very professionally conducted … and professional mediation costs money”. If you have been involved in a David and Goliath mediation of this kind, you will probably recognise the profound truth of that sentiment. It is the unfortunate habit of Goliaths in mediation simply to flex their muscles and indulge in je m’en fichisme until everyone gives up and goes home. The cost of the mediation may be a drop in the ocean to Goliath, but a small fortune to David, meaning that David has much more of a stake in the success of the process. Mediation is not the answer to all ills.
In the light of the current arguments about the new public funding gateways, this speech remains as pertinent as it was six months ago, and I urge you to read it if you haven’t already done so.