Access to Justice

Insight | March 2017

Access to Justice
Image: ‘Lady Justice’ by Eraclis Aristidou

What exactly is ‘access to justice’, and why do we need to preserve it? To answer that we need to first understand how the phrase came about, and then why it may be in danger of becoming a legal bygone.

‘Access to Justice’ was a phrase used by Lord Woolf in 1996, when attempting to streamline the litigation processes attached to personal injury claims suffered by everyday people in the United Kingdom. Largely based upon the combined incentives of Alternative Dispute Resolution (ADR) and part36 (early offers strategies), it was suggested that by expediting claims, there would by default, become a lesser chance of spiralling legal costs, and reluctance of the poor seeking recovery for damages sustained in events beyond their control.

While from a superficial slant this ‘quickening’ of justice appears to embrace those without the means of representation and the legal acumen to work alone, it is now suggested that in fact the contrary has become true. With the collective impact of legal aid cuts, increased court fees and numerous court closures, the resulting options take on a less attractive sheen, in lieu of the growing hesitance to seek legal reparation. This gross misdirection translates as a more cloaked prevention, over the illusion of equitability, and to date there are now many activists campaigning for a dramatic change in policy.

As was discussed in my own academic paper, the dangers inherent to early offers far outweigh the genuine reward for pursuance of authentic remedy, but unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will by majority, remain stacked against them. This in effect, strangulates the innate purpose of accessible justice, and places far greater value upon the currency of industry; therefore while far from helping the weak, it runs a calculable risk of leaving them powerless and unable to fight back.

Legal Aid

In a report published in October 2016, Amnesty International summarised that three key groups were directly affected by arbitrary cuts to legal aid support, namely (i) the vulnerable, (ii) the transitory and (iii) the disabled. And while taking great strides to illustrate the far-reaching consequences of such inconsiderate narrowness, the message was quite simply that:

“Amnesty International is therefore calling on the UK government to urgently fulfil its promise to review the impact of the cuts and take steps to ensure the right of the most disadvantaged sectors of society to access justice is adequately protected.”

 Writing as a father of a special needs child, the first and third groups possess immediate implications for families similar to my own, who for one reason or another, might find themselves facing legal action, whether through public body frustrations, or simple damages-based incidents. Yet knowing that in the first instance there is no legal counsel, and no validation of a right to claim without parallel concerns of costs, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.

Legal Costs

Interestingly, while this area of discussion might prove hard to quantify with any  degree of exactness, the Legal Ombudsmen publication ‘Ten Questions to ask your Lawyer about Costs‘, proves instantly invaluable when evaluating the merits of private law claims.  More notably, recent changes to the fixed fees threshold within litigation, has to some extent, appeased the fears of those predominantly affected by previous reforms; yet the issue remains that claimants subject to a deprivation of counsel (pro-bono or otherwise), might still think twice before filling out their CNF forms. This is a frank but cautious sentiment echoed by Jonathan Smithers of The Law Society, who remarked:

“A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all.”

However, when all is said and done, it is unlikely that both the practice industry and public interest will ever read from the same page, but that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.

The Courts

While there is understandable anger at the gradient closure of almost 90 courts across the country, the promise of a heavily invested tech and user-friendly system, could prove the one positive in this tempering of justice, and so it would be remiss to level accusations of deliberate prevention, when the suggestion of ‘pop-up’ courts is peddled through various forms of digital media.

There is however, cause for concern when terms such as ‘makeshift’ and ‘public houses’ are used in the same context as the ‘fair’ and ‘reasoned’ dispensation of justice, within  an (albeit shrinking) framework of purpose built environments, before calm and attentive audiences. In fact, one might go so far as suggest that legal discourse is becoming diluted, by virtue of the fact that ‘quickie’ courts will themselves, overlook the precision of judicial application in favour of higher case turnover. Contrastingly, the option to pursue legal ends through online portals would seem to proffer greater structure, less chance for media intrusion and a significant cost saving, as was shown during Gary Linker’s recent divorce.

In closing, the point in greatest need of clarification, is that the true meaning of ‘access to justice’ is not one of quick fixes to complex problems. Rather it is about an equal right to a domestic jurisprudence generations in the making. By weakening the fabric of reparation in favour of mass appeasement, the English judicial system will only prove itself counter-productive and rushed; and so it is crucial that any consideration for public interest, and those employed to serve them, must be delicately balanced, rather than a mere continuance of treating every legal problem like a nail.

Global Law

Insight | February 2017

Global Law
Image: ‘Unity’ by Unknown Artist

The idea of a ratified ‘global law’ is a concept that once seemed fantastical, and yet by all accounts, appears now like the primary ingredient to social, industrial and civil equilibrium.

But how does this happen, and what steps might be needed to preserve the needs of the many from the wants of the few? To date, the concept of a single law is more convincing than any suggestion that genuine efforts are being taken to construct a jurisdiction without physical bounds, however it fails to prevent visionaries from imagining such a world, or pondering what form that framework might take.

Giuliana Ziccardi Capaldo, Full Professor of International Law at the University of Salerno Italy, discussed her idea of global law in 2015, and chose to use a web-like hierarchy to describe how each individual player would forge alliance with the next, because in her opinion:

“Global law is elastic enough to integrate the heterogeneous elements of the various and different legal orders into a unitary framework. It is up to the community of international legal scholars/lawyers to manage the complexity in the unit of the web of the global law system; the unitary framework retains the flexibility to allow for respecting the diversity of the plurality of embodied legal orders.”

Yet regardless of how one might perceive an ideology, the sheer scale of expectation asked of legal mega-firms and governmental bodies still seems disproportionate to the discipline required to undertake it. Having investigated current online debate, the results are discouraging to say the least, and when the world’s highest grossing law firm Latham & Watkins LLP offers no visible research, or even discussion of a unitary law, it suggests that perhaps the practice industry think-tanks are predisposed to monitoring investment strategies, over any notion that we may well be walking headlong into dispensation of justice from a centralised platform.

On a smaller scale, the benefits of a singular jurisdiction were recently implemented in October 2016 within Northern Ireland, and while not exactly a transcontinental shift, the objectives become evident, even if only from an administrative level, as was explained in a document published by the Northern Ireland Courts and Tribunal Service (NICTS), which said:

“There will no longer be County Court Divisions or Petty Sessions Districts and all relevant court documents have been amended to reflect this. The words “County Court Division of….” And “Petty Sessions District of……”will no longer appear on any court order or other documentation as court templates have been adapted.”

Whereas in the United Kingdom, we have a groundswell of opposition to the presence of Sharia laws, and if there was ever a reason for the unification of law, this concept would surely warrant a compelling body of evidence against the secular nature of unregulated doctrine.

Formed as part of this resistance, the website onelawforall.org.uk, is built upon a collective determination to remove the propagation of inequality through religious laws, in hope of the reestablishment of democratic values. This growing objection has been defined through a powerful rhetoric, claiming simply that:

“Sharia law is discriminatory and unjust, particularly against women and children.
Sharia courts in Britain are a quick and cheap route to injustice and do nothing to promote minority rights and social cohesion.”

It is suggested that the oppressive effects of this ancient law have been felt through gender specificity, which is not an ideology that could ever hope to find its way into the annals of any ‘new world’ law; and yet because there is no such codification, legal splinter factions are left free to flourish within the confines of domestic legislature.

In India, the application of a single industry law appears to provide huge benefits to small-scale factory owners, desperately trying to navigate the legal loopholes that strangle economic growth and preserve monopolisation.

With the design of improving manufacturing processes, the labor ministry created new legislation in order to overcome the problems faced by the nations entrepreneurs and workers alike, as explained by Mahendra Singhi, in her article for the Times of India:

“At present, small units have to comply with 44 Central labour laws and over 100 state laws…which discourages them to hire workers from the organized sector, and thus denying them basic rights…the government hopes that a single unified law will ensure less cost to the owner and better minimum wages, bonus and maternity benefits to the workers.”

It would seem for now at least, that while unitary rule and governance is constitutionally, commercially and quasi-socially acceptable, the thought of, or preclusion to, entrustment of a law written to serve a race of people, is both a bridge too far and paradoxically swept from the agenda; which while sounding trite in its definition, ought not mislead readers into believing a world law of some kind is not too far beyond our horizon.

This then raises the question of were a unitary law to become a reality, then how would those changes begin to materialise? Will a spark of legal renaissance ignite from within the people, or will the centralisation of power emanate from the core of contributory states?

Contrastingly, does commerce now helm the wheel of judicial evolution, or is politics driving that bus? In the latter event, it seems that the lines frequently blur, so recipients of information inevitably become less concerned with socio-political commentary than the motives underlying it, although whichever sector pushes first for answers, the time for such legal reimagining is overly ripe for discourse.

 

 

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.