Rethinking access to justice in Austerity Britain

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In his famous Concept of Law[1], H.L.A Hart correctly identifies critical flaws in J.L Austin’s “command theory” of legal authority. For Austin, law is separated from cultural and moral norms by the threat of sanction from a sovereign. A norm is made law when it comes at gunpoint with a fierce enough “or else” attached. For modern day liberal democracies, this is simply inaccurate. Hart noted that some areas of law, such as contract or company law, seek not only to impose restrictions on our liberties, but to facilitate instrumental goods[2]. Moreover, democratic institutions seek legitimacy through their moral authority; the notion that even if a law is substantially unjust, the democratic process and multiple channels of scrutiny confer authority to the English legal system.

Linking legal legitimacy to a notion of moral authority leads us to the theory of the Rule of Law, articulated most eloquently by Tom Bingham, who outlined eight essential principles that comprise said theory[3]. The first and foremost is that the law must be accessible to all[4]. By “access” we usually mean two things: First, insofar as it is possible, the law must be clear to the layperson. It is a given that certain, more technical, areas of black letter law will require some detailed understanding of difficult concepts in order to fully correspond to various challenges and nuances that can arise. Nonetheless, as a general rule the law should not be wilfully opaque, but instead aspire to be clear, simple and elegant. Secondly, access to the various sanctions and remedies provided by the law must not simply be the preserve of those wealthy enough to afford expensive legal advice. Whilst some degree of choice should exist in a market economy, it is clear that a certain baseline of legal respite must be universally available.

In recent years the latter has been under increased scrutiny as Europe’s sovereign debt crisis has led the British government to reduce spending on legal aid.  These proposed reforms would restrict all legal aid to those who earn less than £3,000 a month in disposable income, as well eliminating legal aid entirely for certain civil matters (including private divorces, clinical negligence and some immigration cases)[5]. In both criminal and civil cases, a “justice gap” will emerge between those poor enough to receive legal aid, and those wealthy enough to afford legal counsel. Whilst numerous measures exist to help reduce costs and to help bridge this gap, including but not limited to: Alternative Dispute Resolution (negotiating settlements out of court), Conditional Fee Arrangements (no win no fee) and various Pro Bono initiatives, the number of people who are forced to represent themselves in court will almost certainly increase over the coming years. Not only is this a moral hazard for reasons elaborated earlier, but it could actually increase costs for the courts: an increase in poorly constructed cases brought forward will only lead to longer trials. Assisting these people is a matter of moral and economic urgency.

I propose several solutions to the government to help reduce the number of underdeveloped legal cases going through the courts, as well as providing a better level of support for those forced to undertake the daunting process of self representation. First, the Citizens Advice Bureau, the network of charities partially funded by the government that provides free legal advice, should be expanded. In a competitive economy, where Training Contracts and Pupillages are increasingly hard to obtain, students are now looking to contribute to various pro bono initiatives in order to stand out to prospective employers. Sheffield University’s own Freelaw project this year received over 220 applications, with only 80 even considered for interview. Sheer arithmetic alone suggests that there are more motivated and able legal students looking to provided free legal advice than there are opportunities available.

However, the government can go beyond simply increasing the scope of pro bono support. It can use the power of the internet to provide practical and clear legal advice for laypeople. Many cases brought before the courts are not so factually or legally unique that they require the sharpest and most expensive legal minds to disentangle. In many instances, the real cost of expensive legal counsel is certainty – the knowledge that you pay for an experienced professional to take care of any and all procedural and bureaucratic hurdles that your case must overcome. Autodidactical legal study for those looking to self represent is difficult enough when learning resources are either expensive and inaccessible (textbooks), or shallow, out of date or simply incorrect (free online resources such as Wikipedia). The disconnection between the academic principles of law and its practical application is sufficiently wide as to present a serious hurdle, even for those who have the time and inclination to devote themselves to learning relevant sections of the law.

The government could mitigate these problems and others by launching an online portal full of practical legal advice for the layperson.  Currently the Citizen’s Advice Bureau offers some free online advice, but it should be more comprehensive. My “CAB Online” would encompass not only accurate and up to date legal information made clear to the layperson, but it could also include step-by-step guides navigating the various procedures and quirks of court, an “NHS Direct”-like questionnaire to swiftly identify any potential legal problems, as well as templates for standard legal documents, such as wills, and landlord and tenancy agreements.

Secondly, the government could use the leverage of legal aid contracts to incentivise firms to provide unbundled legal services to supplement self representation. As has been alluded to earlier, many components of any case can be performed by the layperson with a little practical guidance. The fact remains however that the law is a complex and technical beast. Whilst general legal advice can go a long way, many people who self represent could benefit from having some bespoke legal advice to fully grasp the nuances of the law, or simply to fine-tune their litigious strategy. Traditionally, law firms have only offered a comprehensive service. You give your solicitor all the documents and details they ask for, they then manage your case from inception to judgement, and finally charge you for every human hour spent working on the case. This is an expensive and inefficient process, which leads to many billable hours spent on making qualified solicitors do predominantly admin-based tasks that could be performed by somebody without an expensive legal education.

In response to this inefficiency, there has been a gradual development of “unbundled” legal services for those seeking to represent themselves. One such example is the Rotherham-based firm Oxley & Coward, who offer a fixed-sum “Pay As You Go” service. The client is the first point of contact, and deals with much of the administrative and documentational burdens, and Oxley & Coward provide targeted legal assistance at a fixed rate whenever the client demands it[6]. Another practitioner, Emel Hussein, goes even further with a range of unbundled legal services via her iSolicitorUK website[7], even offering fixed-rate Skype consultations for specific problems. Whilst there are numerous regulatory and insurance complications owing to the relative infancy of unbundled legal services, in principle this is a development that can provide a systematic improvement in access to justice. Even adjusting for proposed budget cuts, the government spends over £1.5 billion a year on legal aid. This could be a considerable incentive for firms to innovate on pricing structures were firms who offer the flexibility and efficiency of unbundled legal services are given priority in the allocation of these lucrative contracts. This would surely help develop competition and choice for consumers, bringing expert legal advice to people who were previously unable to afford it.

It is a stark fact that our current economic climate threatens a fundamental pillar of our justice system. However, if policymakers and practitioners have the courage, vision and leadership to act, we can go beyond simply cutting costs and could instead fundamentally alter the way in which citizens navigate the law. The Common Law of England and Wales can pride itself on its long, illustrious history of flexibility and adaptation. It is time its practitioners caught up.

 

Written by Max Evans. edited by Leah Boyne



[1] Hart, Herbert Lionel Adolphus. The concept of law. Oxford University Press, 2012.

[2] Ibid, Chapters 3&4

[3] Bingham, Tom. The rule of law. Penguin UK, 2011.

[4] Ibid, p37

[5]  “Legal aid U-turn over price competition plan”, BBC News, http://www.bbc.co.uk/news/uk-23967908, Accessed 13/10/13

[6] http://www.oxcow.co.uk/news.asp?newsid=149

[7] http://www.isolicitor.co.uk/