Lady Hale on access to justice, legal aid and staying at The Ritz

28 June 2011 by Adam Wagner

As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.

Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.

The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.

Hale’s speech is a wide-ranging examination of the meaning of “access to justice”. She explains that article 6 of the European Convention on Human Rights protects the right of access to the courts, and this is “one of the most precious” of our constitutional rights.

But access to he courts is “not much use without access to lawyers”, as many would say. And as the saying goes, “in England, justice is open to all – like the Ritz”. On the government’s current plans, Lady Hale said:

These plans will of course have a disproportionate effect upon the poorest and most vulnerable in society. Indeed, the government’s own equality impact statement accepts that they will have a disproportionate impact upon women, ethnic minorities and people with disabilities.

So rather than making the point in her own words, Lady Hale is in fact quoting the government’s own equality impact assessment, which it has to do by law in order to fulfil its obligations under equality legislation. The central point about equality law is that it can be lawful for a policy to have a disproportionate impact on a particular group, as long as that impact is a justified by a legitimate aim. So, if the legal aid reforms reach court by way of judicial review – which is highly likely – the government will probably argue that the legitimate  aim is to reduce public spending. Lady Hale went on, cleverly steering clear of putting an overtly personal view:

they say that this is justifiable because they are disproportionate users of the service in these areas. This is an interesting argument about which I had better not say anything more, as it is bound to come before us in one shape or form in future.

The phrase “interesting argument” may give a clue to Lady Hale’s views, and she will no doubt express them if the reforms reach the supreme court.

The speech goes on to examine different possibilities for saving money in the court system, but concludes that we need to look at the court system as a whole – including the cost of judges and courts – in order to properly compare how much we spend on “legal aid”:

If we really want to spend less on lawyers we have to be prepared to spend more on a very different style of court from the ones which we are used to. And in any event we have to be prepared to spend money on initial advice and assistance schemes because that is where most problems are solved. Courts are and should be a last resort but they should be a last resort which is accessible to all, rich and poor alike. The big society will be the big loser if everyone does not believe that the law is there for them.

Lady Hale just about stops short of criticising the current government’s plans, but the emphasis of her speech is on the importance of an holistic approach to access to justice. It is all very well reducing access to lawyers but given how little we spend on the court system, this may have the result of locking many people out altogether. So however much you scrimp and save, you may still miss out on that night at the Ritz. As for a fortnight holiday, forget it.

• A “shameful” bill? – The human rights roundup
• Legal Aid, Sentencing and Punishment of Offenders Bill – the aftermath
• Legal Aid, Sentencing and Punishment of Offenders Bill published