The Future Legal Mind competition 2015 seeks to reward the brightest legal minds of tomorrow. Entrants were asked to demonstrate original thinking and legal insight, with a well-structured argument and evidence of research. Amy Loughery won the undergraduate category, answering the question: “If the justice system were a blank canvas and you had the power to structure it, what would you do in terms of access to justice?” This was her winning entry.
The definition of ‘Access to Justice’, much like the word ‘justice’ itself, is somewhat of a mystery. Its origins can be traced back to Italian jurist Cappelletti, who said ”effective access to justice can be seen as the most basic requirement, the most basic human right, of a system which purports to guarantee legal rights.”
The phrase has been fervently misused since its conception, but this has not tarnished the importance of the concept itself.
‘The right to effective access to justice’ has been brought into question recently by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LAPSO), which effectively cut the legal aid budget by £215m. The director of Liberty, Shami Chakrabati, has said that fundamental rights and freedoms and the rule of law are meaningless without access to justice: “Without practical means of understanding and enforcing the law… there is no longer a level playing field. Unlike many countries in the world, no one checks your wallet in the emergency room. But when it comes to legal advice the rich can pay, the not-so-rich will struggle to find the means, and under new reforms, the poorest may be shut out from a legal system which we were once proud of.” This does not seem to reflect a country which ‘purports to guarantee legal rights’.
A possible solution would be the creation of a ’National Justice Service’.
The proposed structure would mirror that of the NHS. There would be a hierarchy of legal professionals, funded by the state, but representing the people. At the top of the pyramid there would be managing directors, all appointed by an independent board of commissioners to which they are held accountable. These commissioners and managing directors would be overseen by a board of Independent Quality Commissioners and Professional Regulators, who would work in partnership with, but not for, the department of Justice.
The managing directors would oversee the everyday functioning of ‘Justice Centres’ which would range in size from large, central city locations that deal with more complex litigation, to smaller, more community focused centres that would focus on giving advice and the facilitation of self-help remedies. The justice centres would have the number of legal professionals needed to meet the demand required by the size of the centre in terms and its location.
These would be supported by layers of support staff such as legal executives, paralegals and administrative staff. A more detailed plan of the organisational structure is beyond the scope of this essay, but this is a fundamental outline.
The most obvious concern about implementing an “NJS” is financial. Unlike the NHS, which at the moment is in financial despair, we would need to ensure the NJS could be a profitable enterprise. As such, not all legal professionals would be employed by the National Justice Service. As with our current health industry, there would be a competing industry of private practice. In order to ensure a fair distribution of work between the two sectors, a means-tested qualification criterion could be implemented to access NJS services, ensuring that those who can afford to pay, do, while those who cannot can still access justice.
There is also a danger that a publicly-funded legal institution such as the NJS could weaken the separation of powers. Nevertheless, the publicly-funded NJS would remain entirely separate from the courts, so as to not compromise their independence. Moreover, the entire system would be run by autonomous managing directors, overseen by independent boards of governors who would work in partnership with the Department of Justice but not for them, and by completely independent regulators. In any event, professional requirements of independence and the inherent prevalence of neutral partisanship would remain.
The primary advantage and appeal of the NJS resides in the access to justice it would ensure for thousands. We have a system which purports to guarantee legal rights, but following LAPSO it is debatable as to what extent this is actually true.
Under Article 6 of the Human Rights Act 1998, the state has a duty to ensure that every citizen has access to a ‘fair and public hearing within a reasonable time by an independent and impartial tribunal’ when determining civil rights and obligations or facing criminal charges. But how can the state be said to have met that obligation, when because of cuts to legal aid, citizens are not receiving appropriate advice on the merit of their claim and how to proceed through, what is often, a frankly alien system?
Where the NJS would be most successful, would be in defending and protecting those facing criminal charges, where the balance of power is most unequal and individual citizens cannot match the resources of the state. Post-LAPSO, the provision of legal advice under the Police and Criminal Evidence Act 1984 has become less of a right and more of an inconvenience, and citizens facing censure are often left to fend for themselves during the criminal justice process, most often in police custody. Another area where the NJS would be beneficial is in divorce, where Legal Aid is now not available apart from domestic violence cases. This ostensibly makes marital rights and constructive trusts seem pointless for many people, as they have no way of accessing them.
It is difficult to conceptualise how the creation of a National Justice Service would work in the current economic climate and there are a number of constitutional arguments that could deflate the notion of it altogether. But as a theoretical, exploratory argument in terms of maximising access to justice, there is no more powerful alternative. The creation of a publicly funded institution, a National Justice Service, would embed the fundamental right to access to justice into the welfare state, and thereby give every citizen free access to the protection of their civil and human rights. This is the true nature of a system ‘which purports to guarantee legal rights’.
Amy Loughery is the winner of the Future Legal Mind competition for undergraduates, winning £5,000 towards his studies during 2015 and work experience at the law firm Colemans-ctts.
Amy is a second year law student currently studying at the University of York. She describes herself as coming from a strong working-class background, with her desire to pursue a career in the legal profession driven by a firm belief that people’s ability to defend and fulfil their legal rights should not be determined by how much money they have. The areas of law that interest Amy most are criminal, personal injury and family law – the areas of practice that have been hit hardest by cuts to legal aid funding.
Outside studying law, Amy’s interests and hobbies include involvement in the University of York’s poetry society and the music scenes of Leeds and York, as well as organising charity fundraisers.
- Read postgrad winner Lukas Hamilton Eddy’s article: The days of state-funded legal services are over – so let’s make pro bono tax deductible