Law: Access to justice is not just a gimmick

Our Learned Friend

NO ONE can ignore the revolution happening in the civil justice system. The aim is to create a system that is cheaper, quicker and simpler than the current one, and to increase access to justice "for ordinary people". But, as the Access to Justice Bill of Lord Irvine, the Lord Chancellor, moves through Parliament, there are signs that the reality may fall well short of this.

A whole package of reforms has been trailed and is now on the way. The court system is being redesigned following Lord Woolf's report on access to justice. In April, new court rules come into force marking the start of the biggest shake-up of the civil justice system in more than 100 years.

The way legal services are organised and delivered is also being changed. The legal aid system is to be replaced by two schemes run by a Legal Services Commission: the Community Legal Service and the Criminal Defence Service. Conditional fee agreements have been extended to nearly all areas of civil litigation, and will be updated to increase their uptake. Legal aid for personal injury cases looks likely to be scrapped as a consequence.

The Government's programme has a central theme: better targeting of how money is spent and meeting people's needs for legal services. Many of the changes are made in the Bill itself. But much of the important detail will follow in rules and guidance made by the Lord Chancellor and the various new bodies created by the Bill. This has caused some concern - eyebrows were raised at initial attempts to give the Lord Chancellor sweeping new powers.

And alarm bells started to ring when the Bill was considered in detail by the House of Lords - an attempt to promote equal access to justice had a frosty government reception. During the report stage of the Bill, a new clause - backed by a coalition of consumer and legal bodies - was introduced to protect access to the justice system for vulnerable people, such as the disabled.

That clause sets out the principle that legally aided consumers are placed on an equal footing before the law with privately paying clients. It also guarantees that, under the reformed legal aid system, individuals will not be discriminated against on the basis of disability or where they happen to live.

This new safeguard was adopted with a majority of 71 peers from all sides of the House. But the Government dismissed the proposal as a "gimmick" and now threatens to take out the clause when the Bill reaches the House of Commons.

When money is tight, tough decisions have to be made, but surely treating people equally before the law is a fundamental principle of justice. That has been central to the legal aid system since its birth more than 50 years ago. The Lord Chancellor has said that the present clause is self- contradictory and has conflicting objectives - but he has yet to propose a viable alternative.

This Bill is all about access to justice - but it has to live up to its title. If a principle in this Bill to protect the weak is a gimmick, then all legislation needs such gimmicks. Clear objectives have to be put into the law and the Lord Chancellor cannot escape his responsibility to ensure that high-quality legal services are provided, and on an equal footing.

Lord Irvine's initial reaction was that the clause is "quite unrealistic". If that is the Government's considered view, then the conclusion must be that from now on, those on legal aid can be expected to receive a second- class service.

Ashley Holmes is head of legal affairs at the Consumers Association

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