Do we have a right to justice?

Oliver Carter

As new research reveals the devastating impact of legal aid cuts, Labour is considering not only reversing some of those cuts but enshirining in law our right to justice.

Do we have a right to justice? And, if we do, does it include the right to publicly funded legal representation to ensure that we have genuine access to justice?

Labour might be about to answer these questions in the affirmative by endorsing a new Right to Justice Act, as proposed in a report launched at the party conference in Brighton this week by an independent commission chaired by Labour peer Lord Willy Bach (the report can be downloaded here). The Bach Commission on Access to Justice was formed shortly after the election of Jeremy Corbyn as Labour leader in order to carry out a comprehensive review of legal aid, following drastic cuts made by the Coalition government.

The right to justice

In its report, The Right to Justice, the Commission recommends a Right to Justice Act to establish an enforceable right “for individuals to receive reasonable legal assistance without costs they cannot afford”. The report also calls for the creation of a Justice Commission to monitor and enforce the right to justice, and for reform of the financial eligibility and scope rules for legal aid to create a simpler, more generous system which enables many more people to access publicly funded legal help.

The radical proposals are intended to "help lift the provision of justice above the political fray”.

The Commission believes that its radical proposals would “create a new legal framework that will, over time, transform access to justice”. All of this is, according to Lord Bach, intended to “help lift the provision of justice above the political fray” and return to the consensus on access to justice that existed for decades after the modern legal aid system was introduced as part of the post-war welfare state.

A crisis in our justice system

But why is a new right to justice necessary? As the report notes, “an effective legal system in which all can access justice fairly is the cornerstone of a free society”, and without access to justice, trust in institutions and the rule of law is at risk of breaking down. There is, however, a “crisis in our justice system”. 

As part of its post-financial crisis austerity agenda, the Coalition government reduced the budget of the Ministry of Justice by 34% between 2010-11 and 2015-16. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced to implement swingeing cuts to legal aid, removing vast areas of social welfare law – including most debt, benefits, housing, employment and immigration advice – from the scope of legal aid.

The result of this was a devastating 84% reduction in the number of civil (i.e. non-criminal) cases funded by legal aid, from 933,815 cases in 2009-10 to just 146,618 in 2016-17. Hundreds of thousands of people each year are denied access to justice as a result of the Coalition’s cuts to legal aid. 

As damaging as LASPO was, it should be emphasised – as the Bach Commission itself acknowledges – that the crisis in access to justice did not begin with the Coalition government. 

When the Legal Aid and Advice Act 1949 was passed, it was intended to make legal aid “more readily available for persons of small or moderate means”. However, there has been a huge decrease in the proportion of people who are financially eligible for civil legal aid: in 1980, 80% of households were eligible, but by 2008 that figure had fallen to 29%. It is now likely to be even lower – perhaps as low as 20% – given that the financial means test is not updated to account for inflation.

There is an urgent need to “ensure that justice is within the reach of the majority and not just the very wealthy and the very poor”.

Restoring legal aid: a blueprint for access to justice policy?

In order to address this ongoing decline in access to justice, The Right to Justice makes recommendations for both urgent and long-term reform. It calls on the government, which is currently in the process of conducting its own review of the cuts to legal aid (due to be completed by the fifth anniversary of LASPO in April 2018), to invest £400m per year on short-term measures including restoring early legal help for all social welfare law, extending financial eligibility for civil legal aid and bringing back into scope all matters concerning legal support for children.

The Bach Commission accepts that while it “may not be possible to immediately reverse” the decline in legal aid eligibility since 1980, there is an urgent need to “ensure that justice is within the reach of the majority and not just the very wealthy and the very poor”. It therefore proposes that, for now, the aim of government could be to provide publicly funded legal assistance to everyone with a below median income, as was the case in the late 1990s when 53% of the population were eligible for civil legal aid.

The Right to Justice Act would codify rights dating back to Magna Carta and include the right to a fair trial guaranteed by Article 6 of the ECHR.

In the longer-term, the Commission’s proposed Right to Justice Act would codify existing rights to justice, dating back to Magna Carta and include the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights, as well as introducing the right to justice, a new individual right to reasonable legal assistance without costs which people cannot afford. This right to justice would be enforceable in court and compliance with the right would be monitored by an independent Justice Commission.

The bold recommendations in The Right to Justice have the potential to significantly improve access to justice and, as Young Legal Aid Lawyers has said, could form the blueprint for legal aid policy for decades to come. The report merits serious consideration by all political parties and anyone concerned with the future of access to justice. 

In particular, it is incumbent on the government to reflect on the recommendations in The Right to Justice as part of its own review of legal aid; indeed, even the Conservative chair of the Justice Select Committee, Bob Neill, has accepted that the Coalition government “went too far” in cutting legal aid.

A vision of a fairer justice system 

Unfortunately (if unsurprisingly), the initial response by the minister responsible for legal aid, Dominic Raab, was dismissive: “We will continue to focus legal aid on those who most need help, recognising the cost of this support is met by the taxpayer, even as Labour produce yet more unfunded proposals.” 

By contrast – and also perhaps predictably, given that the independent Commission of legal experts was set up at the instigation of Jeremy Corbyn and led by a Labour peer – the response from Labour has been positive. The Shadow Lord Chancellor, Richard Burgon, welcomed The Right to Justice and declared himself “particularly excited by the idea in the report of a new, legally enforceable right to justice to match our rights to healthcare and education”.

Burgon wrote that the report “will certainly play an important role in informing the debates around Labour’s next manifesto process and our vision of a fairer justice system”. If Labour is now a “government in waiting”, as Jeremy Corbyn is fond of asserting since his party’s performance in the general election in June this year, then the right to justice could soon become a reality. /OD