{"id":310,"date":"2019-07-30T14:43:32","date_gmt":"2019-07-30T14:43:32","guid":{"rendered":""},"modified":"2019-08-07T11:29:55","modified_gmt":"2019-08-07T11:29:55","slug":"english-legal-system-access-justice-2944","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/english-legal-system\/english-legal-system-access-justice-2944.php","title":{"rendered":"To What Extent Does the English Legal System Offer Access to Justice for All?"},"content":{"rendered":"

To what extent does the English legal system offer
\naccess to justice for all? Should effective access to justice be an integral
\npart of any fair legal system.<\/strong><\/p>\n

Introduction:<\/strong><\/p>\n

This essay will be split into two parts, firstly it will
\nbe analysing the extent to which the English legal system provides equal
\nopportunity of access to justice for all; and secondly will answer whether
\naccess to justice should be fundamental to any fair legal system. This question
\nwill be answered by addressing what access to justice is, how it has changed
\nover time, reasons for the changes, and should it be integral. This essay will
\nconclude that the English legal system does not offer effective access to
\njustice for all and that it should be an integral part of any fair legal
\nsystem. <\/p>\n

What is access to
\njustice:<\/strong><\/p>\n

Access to justice denotes to the right of an individual
\nto have effective access to the courts, so they have the means to settle legal
\ndisputes.[1]<\/a> It is an essential
\nprinciple of the rule of law, which involves a society that guarantees its
\npeople the right to a fair trial. This is where equality lies, binding everyone
\nequally by entitling them to the laws of the land, one of which is having equal
\naccess to justice. Legal aid is part of access to justice, which aims to help
\nthose who cannot afford legal costs, to have the justice process available
\nregardless of their income.[2]<\/a> The Human Rights Act 1998[3]<\/a> states that if one cannot
\nafford legal representation, then their right to a fair trial is undermined,
\nwhich is a key principle to a democratic society. This is protected under Article
\n6[4]<\/a> of the Human Rights Act
\n1998. The intended result being a greater number of people having access to
\njustice, increasing the extent to which the English Legal System offers access
\nto justice for all and encompasses the rule of law.<\/p>\n

 Today, legal aid
\nis available for both civil and criminal cases, however, the opportunity of the areas of law that are
\nfunded by legal aid and those who are entitled to it has been continually
\nchanging over time. In both criminal and civil cases, the right to legal aid
\nmust be determined through various criteria. If an individual falls into the
\nthreshold needed, then they can be eligible for legal aid. However, over time these
\nthresholds have continued to increase, making it progressively harder for
\ncertain individuals to obtain access to justice. <\/p>\n

Evolution of access to justice:<\/strong><\/p>\n

In the 1900s, prior to the
\nsecond world war, legal aid was provided through charitable donations to those
\nwho could not afford legal representation. This was unpredictable and erratic,
\nrendering many without access to legal defences. The clear limitations of
\ncharitable donations providing legal aid were made clear by one of the founders
\nof the Poor Man\u2019s Layer movement, stating that such a system made the rule of law
\n“anaemic attenuated make-believe which we flash in the eyes of the poor as
\njustice.”[5]<\/a> However,
\nduring and subsequent to World War II, steps were made to ensure a fairer
\nsociety in the eyes of justice, whereby a welfare system was shaped under the
\nLegal Advice and Assistance Act of 1949, establishing the unified system of
\nlegal aid.[6]<\/a>
\n The scheme initially provided 80% of the
\npopulation with a means-tested right to legal aid.[7]<\/a>
\nDuring the ensuing fifty
\nyears, a number of changes were made by Parliament and the executive
\ngovernment, but over-all, the system was deemed sufficient. For example, in the
\nmid-1980s, 70% of the population were still eligible for legal aid, and there
\nwere relatively few exclusions of types of cases from the legal aid
\neligibility. However, by 1999 the civil legal aid was very restricted and had
\nto be replaced by the Access to Justice Act 1999[8]<\/a>.
\nThis deduced that claimants were able to access the courts by guaranteeing that
\nthey did not have to pay much in the way of costs if they lost and they
\nrecovered all their costs if they won.[9]<\/a>
\nThis act ensured that every application was to be independently assessed by the
\ngovernment to enable only those who fit the requirements to be provided with
\nlegal aid. However, this act was based on the proposition that upon if the
\nclaimant wins, the defendant would not only pay for the claimant\u2019s costs: the
\ndefendant would have to pay three times the claimant\u2019s costs.[10]<\/a>
\nThis system was replaced on 1st<\/sup>
\nApril 2013,  by the Legal Aid, Sentencing
\nand Punishment of Offenders Act (LASPO) 2012[11]<\/a>, pursuant to
\nsuggestions made by Lord Justice Jackson, a Court of Appeal judge due to the inherently
\nquestionable nature.[12]<\/a>
\n While the Legal Aid,
\nSentencing and Punishment of Offenders Act 2012 mediated few issues with the Access to Justice Act 1999, it also
\nconfirmed cuts to public funding, making
\nextensive changes to the legal aid system for family law as well as other areas
\nof civil law in England, reducing the range of civil cases that legal
\naid would be eligible for. The
\ndecision to introduce significant cuts to the pre-existing system governing civil
\nlegal aid was encouraged by economic considerations with limited foresight for
\nthe potential negative and profound impacts on the protection of human rights
\nin the UK.  The drawbacks such as
\nlimiting private family law legal aid to domestic violence between husbands and
\nwives had had predictable consequences such as decreasing claims but increasing
\nallegations of domestic violence as a way of qualifying for legal aid. Subsequently,
\nfewer people can now access free legal aid and representation in a wide range
\nof cases[13]<\/a>.<\/p>\n

Who is effected:<\/strong><\/p>\n

Now, legal aid is simply not available for most
\ncases.[14]<\/a> This correlates to the English legal system
\ndeveloping a two-tier system of justice: one for the affluent and another for everyone
\nelse. The Lord Chief Justice stated that our system of
\njustice is now unaffordable to the majority.[15]<\/a>However,
\nthis discrepancy of equality before the law isn\u2019t just about cuts to legal aid.
\nOver the years there has been several increases to court and tribunal fees as
\nwell, making access to justice prohibitively expensive.[16]<\/a>
\nDespite widespread opposition, it has been confirmed that asylum and
\nimmigration tribunal fees will be increasing by 500%, and employment tribunal
\nfees increasing, resulting in a huge drop in claims.[17]<\/a>
\nCourt and tribunal closings, coupled with the increase cost and complexity of
\nlitigation and the shrinking of legal aid, continues to increase difficulty and
\nexpenses for many people to access justice.<\/p>\n

Although
\nthese changes affect everyone, they predominantly affect those who have the
\nhighest need for recourse to the law.[18]<\/a>
\n The changes are likely to
\ndisproportionately affect ethnic minorities, women and people with disabilities
\nand mental health problems.[19]<\/a> Legal aid should be one
\nof the fundamental aspects of the UKs legal system, that allows those who are
\nleast able to afford or understand legal advice and access to justice a way of
\ndoing so. People living in poverty, who cannot afford to pay for legal advice
\nand representation, will be most affected by the removal of pertinent areas of
\nthe law from the scope of legal aid. This problem is exaggerated as a result of
\npoverty stricken areas having a higher rate of legal problems in the various
\ncategories that have been withdrawn from the scope of legal aid such as welfare
\nbenefits.[20]<\/a>
\nIf our legal system cannot protect the most vulnerable people in society, it
\ncannot be regarded just or to uphold the rule of law. It is hard not to
\nconclude that we are compromising our justice system for austerity. <\/p>\n

Why it should be integral:<\/strong><\/p>\n

Whilst it can be said
\nthat the government have managed to decrease the budget deficit through major
\nsavings to the civil legal aid budget, they are temporary savings, and have ignored
\nthe knock-on financial costs that could counterbalance or even eliminate these
\nsavings.[21]<\/a> Without
\naccess to representation and advice, there will be pertinent issues such as: increased
\nlevels of homelessness, increased debt, and separation from families. This not
\nonly has substantial human costs to the individuals and their families, it also
\nhas a wider social cost, forcing services to take the increasing burden of
\nsupporting those whose problems have been allowed to mature due to the lack of
\naid. Parliamentary committees and other organisations have emphasised the damage
\nof wider financial costs to essential services, caused by cuts to legal aid,
\nsuch as added demands on the NHS as a result of reduced welfare advice.[22]<\/a><\/p>\n

Looking more widely, access to legal advice and
\nrepresentation is central to the rule of law, and the rule of law coupled with
\ndemocracy is one of the two essential aspects on which a fair society is
\nbased.  For any state to uphold the rule
\nof law, and be a truly just and democratic society, protection of fundamental
\nhuman rights must be adequately provided for. As stated by judge Thomas
\nBingham: \u201ca state which savagely represses or persecutes sections of its people
\ncannot in my view be regarded as observing the rule of law\u201d.[23]<\/a> If this is not present,
\nthe rule of law would becomes inconsequential.<\/p>\n

Conclusion:<\/strong><\/p>\n

Although access
\nto justice is still available, the extent to which it is available for all has
\nnarrowed drastically, with the disadvantaged and vulnerable being most affected
\nby these times of austerity. Access to justice is an integral part of human
\nrights protection in any state. It is a fundamental element that provides
\nindividuals with the right to have an efficient remedy, the right to fair trial
\nand the right to equality before the law regardless of race, gender, disability
\nor income. In England the provision of legal aid has necessarily acted as a foundation
\nthat encompassed the edifice of access to justice. Without efficient and available
\nlegal advice, people cannot effectively claim and enforce their rights, and society
\nwill eventually start to fragment. That is not merely just the increase between
\nrich and poor, which leads to segregation and inequality amongst society if it
\ngets too large. It is the destruction which arises when people lose faith in
\nthe legal system, and subsequently then lose faith in the rule of law,
\nundermining society. The UK and its democratic history now faces the serious
\nrisk that the rule of law is taken for granted, consequently ignored, and is
\nthen lost completely, and only then does everyone realise how absolutely
\nintegral it was to society.<\/p>\n

Bibliography:<\/strong><\/p>\n