{"id":438,"date":"2019-03-27T17:05:20","date_gmt":"2019-03-27T17:05:20","guid":{"rendered":""},"modified":"2019-06-11T08:59:10","modified_gmt":"2019-06-11T08:59:10","slug":"access-to-justice-analysis-9028","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/public-law\/access-to-justice-analysis-9028.php","title":{"rendered":"Critical Analysis of Mechanisms Providing Access to Justice"},"content":{"rendered":"

INTRODUCTION <\/h2>\n

The rule of law (ROL) is a core
\ncharacteristic of the UK, as a liberal democracy. Enshrining varying concepts, the
\nROL requires embodiment in several mechanisms. Both criminal and civil courts
\nprovide avenues for judicial review and tribunals, through which the ROL is
\nable to thrive. <\/p>\n

Access to these institutions is fundamental;
\nif the avenues of attainment are clogged, the ROL would not be able to
\nfunction. The importance of access to justice (ATJ) in
\nachieving the ROL will be explored. Unguarded ATJ is paramount, to impede this
\naccess would be to contrast the values of the legal system. <\/p>\n

THE RULE OF LAW <\/h2>\n

Rooted in political thought and notions of constitutionalism[1]<\/a> the ROL has existed and evolved in systems <\/a>of governance for centuries.[2]<\/strong><\/em><\/a> Noted inA.V Dicey\u2019s<\/em>, the \u2018Law of the Constitution\u2019<\/em> it is a \u2018fundamental doctrine\u2019<\/em>[3]<\/a> by which every individual must obey and submit to.[4]<\/a><\/p>\n

Comprised of several values; legal certainty,
\nfairness, equality, and due process.[5]<\/a>
\nThese values enable a system to be democratic while also ensuring the ROL and
\nwider scope of justice is adhered to.[6]<\/a>
\nLord Neuberger, noted in 2013 under the ROL, \u201cany persons with a\u2026reasonable legal claim must have an effective
\nmeans of having that claim considered \u2026\u201d<\/em> ATJ, is therefore important as a
\nmeans of ensuring the ROL is met. While the virtues of a rule can be offered
\npraise, without free and open access, their ambitions are not met, and it can
\nbe said the ROL would be reduced to worthlessness.[7]<\/a>  Lord Neuberger said that ATJ has several components, the most vital of
\nwhich will be explored; accessible courts; an effective legal system and
\nprocess and affordable justice.[8]<\/a> <\/p>\n

CIVIL SYSTEM <\/h2>\n

The greatest attempts at improving ATJ came
\nin the Woolf reforms.[9]<\/a>
\nThese reforms, given the ineffective and costly system, which were thought to
\nbe a direct hindrance on people seeking justice.[10]<\/a>
\nThe former system was said to be expensive, delayed, incomprehensible to the
\nlay person and so actively ensured that for most, ATJ in civil proceedings was unattainable.[11]<\/a><\/strong><\/p>\n

Woolf reforms enacted a set of civil
\nprocedural rules[12]<\/a>,
\nwhich sought to redress the above and cause fairness. Lord Woolf noted that a
\nsystem which ensured equality between parties, placed no unreasonable financial
\nburdens, endeavored to ensure cases were heard swiftly, and by competent legal
\nprofessionals was fundamental to the ROL.[13]<\/a>  <\/p>\n

Changes included judicial case management, ADR prioritization and obligation
\nand a push towards settlements.[14]<\/a>
\nAnother attempt was to simplify the system, producing a singular guiding
\ntool for both county and high court claims.[15]<\/a><\/p>\n

The reforms, despite ambition, have continued
\nto hinder a parties\u2019 ability to access justice. Zander<\/em>[16]<\/a>being a critic, notes while they have
\ntransformed the system, they simply reallocated the most objectionable features
\nwhich hindered ATJ.[17]<\/a> <\/p>\n

Further, Malleson<\/em>[18]<\/a>
\nnotes that judicial management, pre-trial hearings and disclosure have created
\na front-loaded costs system, which has significant impact on a person\u2019s ability
\nto pursue justice. A report in 2001 by the Law Society noted that 46% of
\nrespondents thought costs were a significant hindrance[19]<\/a>.<\/p>\n

Lord Justice May noted costs are \u201cthe biggest problem which could endanger the success of the CPR”<\/em> and the ATJ. Noting that a system which was inaccessible to many, was a system not based on universality but on exclusionary bias. Costs were under the old system a blockade to justice and they remain so.<\/p>\n

TRIBUNALS<\/h2>\n

The tribunal service<\/a> ensures individuals have sufficient ATJ. Tribunals are a mechanism to resolve disputes which occur privately or between citizens and the state.  <\/p>\n

Tribunals have been recognised as a
\nfundamental mechanism to ATJ. Sir Oliver forwarded recommendations which aided
\nthe tribunal system in its execution of fair and impartial justice.[20]<\/a> The
\nsystem required consistent reform to ensure its original aims remained. <\/p>\n

Ensuring the process was effective, Sir
\nAndrew Leggatt undertook further examination of tribunals to determine whether
\nfair, timely, proportionate, and active provisions were in place for handling
\ndisputes.[21]<\/a>
\nThe review required the fundamentals of ECHR were incorporated into the
\nmechanisms. <\/p>\n

The Leggatt
\nreport found that tribunals had become inaccessible, user unfriendly and open
\nto impartiality and bias administration.[22]<\/a>
\nAll of which defeated the inherent aims of the service as an outlet for
\ncitizens. <\/p>\n

The report found tribunals were dependent on funding,
\nleaving the potential for bias.[23]<\/a>
\nThe ROL notes that no judge should be an adjudicator of his own case, here Leggatt
\nsought reform. <\/p>\n

The reforms resulted in a streamlining of service
\nensuring uninhibited ATJ.  Following
\nLeggatt, tribunals continue holding many valuable assets in aiding the justice
\nsystem. Cost effective as each party pays their own costs and do not face
\nhaving costs awarded against them in the event that they lose.[24]<\/a>
\nDue to simple procedures, they do not require legal representation and allow
\nclaimants to represent themselves.[25]<\/a>
\nThis ease of process lessens fears many claimants have and makes the system
\napproachable and more accessible.[26]<\/a> <\/p>\n

Tribunals deal with over a million cases per
\nannum, without them, the court system would be burdened. Tribunals provide an accessible
\nand practical solution for citizens. <\/p>\n

JUDICIAL REVIEW <\/h2>\n

Judicial Review (JR) is another means for ATJ that allows
\na private citizen the opportunity to hold accountable persons in authority.[27]<\/a>
\nJR applications are regulated by the Rules of the Supreme Court[28]<\/sup><\/a>, which
\nrequire an application to be based upon one of three points; illegality,
\nirrationality or procedural impropriety.[29]<\/a>
\nIssues of illegality relate to authoritative bodies; local[30]<\/a>
\nor centrally[31]<\/a>, acting ultra vires<\/em>, and goes to the very heart
\nof ROL in that no-man, or body, despite their status is above the law.[32]<\/a>  The second reason irrationality, gave rise to
\n\u2018Wednesbury unreasonableness.\u2019<\/em>[33]<\/sup><\/a>.<\/sup>
\nWhere a decision is as ‘so unreasonable
\nthat no reasonable authority could ever have come to it[34]<\/strong><\/a><\/em>‘,
\nthe court will intervene, this extends to decisions made without proper
\nconsideration of the facts[35]<\/a>,
\nensuring decisions are made after open presentation of facts; it embodies
\ntransparent justice.[36]<\/a>
\nThe final means of a JR application is procedural impropriety, this relates to
\nadverse decisions arising from failures to observe procedure laid down by
\nstatute.<\/p>\n

As can be
\nseen, JR provides an ATJ which can aid in the fulfillment of ROL principles. <\/p>\n

However, JR
\nsuffers disadvantages.  Firstly, JR is
\nlimited in scope and only available against persons or bodies which perform
\npublic functions. Decisions made which are potentially judicially reviewable in
\nnature, but not subject to its jurisdiction cannot be pursued and the aggrieved
\nmust seek recourse through the costly avenues of private law.[37]<\/a><\/p>\n

Another
\ncriticism is the requirement of standing in that only those with locus standi<\/em>, can make an application.
\nThe individual must have a special interest in the issue. While standing can in
\ncertain situations be regarded in a more liberal approach, the party still must
\nhave a \u2018real, reasonable, recognised and
\nrelated concern\u2019<\/em>[38]<\/a>social campaigners may not easily pursue
\na case on behalf of a person who lacks the financial ability. <\/em><\/p>\n

Finally, JR
\ncan cost between \u00a36,000 to \u00a350,000.[39]<\/a>  Combined with the requirement that a JR
\napplication must be made within 6 weeks to 3 months, costs and ability to raise
\ncapital limit many from seeking redress.[40]<\/a><\/p>\n

LEGAL AID<\/h2>\n

One of the most imperative avenues which enables ATJ is legal aid. Legal
\naid is a mechanism affording ATJ in its most literal sense. It was designed to
\nmake justice available regardless of income.[41]<\/a>
\nIt is a system which ensures the key principles of a democratic society are
\nmet; all are equal before the law and possess the equal rights and opportunities.
\nThe ECHR sets out obligations of government for provisions of legal aid in
\ncriminal justice.[42]<\/a>
\nDespite this, legal aid has come under criticism.[43]<\/a>\n<\/p>\n

The Legal Aid,
\nSentencing and Punishment of Offenders Act (LASPO) 2012 cut approximately \u00a3350m
\na year from the legal aid budget ensuring that only in certain exceptions would
\nlegal aid be provided.[44]<\/a>
\nCases concerning divorce, housing, immigration and social security can qualify
\nfor legal aid when classified by a narrow criterion. LASPO has certainly
\nhindered ATJ.  <\/p>\n

It could be argued that legal aid cuts are in direct contravention of wider international obligations in ensuring ATJ, given that at an international level, it has been cited as a facilitative right.[45]<\/a> However, the weak stance of the ECHR, in Artico<\/em>[46]<\/a> and Quranta<\/em>[47]<\/a>, have ensured that the UK\u2019s approach to legal aid surpassed the benchmark of lawfulness.  The system in action is based on means of wider interests of justice. When correlation is lacking, ATJ will be governed by an individual\u2019s ability to fund it.[48]<\/a> Some argue this is a despicable diversion from the ROL.<\/p>\n

Concerning civil law, despite Article 6(1) implying a right to free legal assistance in certain civil cases, cuts have continued.[49]<\/a> The Parliamentary Justice Committee noted that under LASPO, 65% of all community legal advice centers have been closed.[50]<\/a> A Rights of Women survey found that people had difficulty in obtaining a legal aid solicitor in family cases[51]<\/a> and the Justice Select Committee noted women eligible for legal aid through the domestic violence gateway were unable to access legal aid lawyers locally and their ATJ was impeded[52]<\/a>.<\/p>\n

Cuts in legal aid
\nwere designed to divert people from combative litigation and towards ADR;
\nhowever, ATJ is a hurdle many do not attempt. The ROL requires access to a
\ncompetent legal profession as a means of assuring justice, unfortunately, legal
\naid cuts have crippled this and ensured that justice is a pursuit for the
\nwealthy.[53]<\/a><\/p>\n

CONCLUSION <\/h2>\n

The UK system
\nof governance provides a comprehensive system where an individual can access
\njustice and seek remedy for grievances. 
\nWhile those mechanisms exist, uninhibited access can be said to be a
\nprivilege of the wealthy. Despite the system providing channels of resolution, it
\ndoes so at a cost. Cuts in legal aid, severely inhibit ATJ. This burden on the
\nsystem, draws attention away from positive elements in practice today; notably
\nthe tribunal system, which is a pillar of hope. <\/p>\n

The ROL
\nrequires consistent commitment by governments for its potential to be
\nfulfilled. Until the UK government provides that commitment, it is likely ATJ
\nmay continue to be an unobtainable goal for many. <\/p>\n

BIBLIOGRAPHY <\/h2>\n

INTERNATIONAL LEGISLATION<\/h3>\n