Whose law is it anyway?
26 July 2011
What is a “tort”? No, not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.
It is heartening but unfortunately rare to see a judge explaining an important ruling of to the public. Save for supreme court rulings, which are always accompanied by an excellent press summary, the public is left alone to puzzle out the meaning of judgments. Journalists do their best to explain, but often get it wrong either by accident or design.
A lawyer can help. But lawyers are expensive. And, if the government’s legal aid and litigation funding reforms make it through Parliament – which, despite the legal community’s valiant efforts, they probably will – many of society’s most vulnerable will no longer have access to lawyers.
The campaign against the reforms has focussed on access to justice, which usually means access to a lawyer. But equally important is access to law. Lady Hale, a supreme court justice, picked up on this in a recent speech, saying that a “great deal of time, trouble and money is wasted when the law is complex and unclear”. She also observed that if the legal aid system is cut we need to spend more on courts and on initial advice and assistance schemes.
I would add access to the law itself to the shopping list. After the legal aid and litigation funding reforms have been passed, the Ministry of Justice could improve access to law in three relatively cheap ways.
First, the public need online access to up to date legislation. At the moment, the government’s legislation website is not up to date. If you search for a particular statute or statutory instrument, the site only guarantees it is up to date to 2002. This is woeful. In 2011 it is unacceptable that a member of the public should be subject to a law which they cannot find, and public authorities should be restricted from relying on a law until it is reasonably accessible online.
Secondly, case law needs to be more accessible. BAILII, a great charity which needs more money, publishes rulings online almost instantly. But legal blogger Judith Townend and others have asked whether more could be done to free up the raw information which the legal system generates. A new online service called Judgmental is aiming to expand digital open justice with an alternative to BAILII. Competition in the digital open justice field should be encouraged.
But even if they are available online, judgments are difficult, long and getting longer. Our judges, who have warned in their response to the proposals that there will be a”huge increase in the incidence of unrepresented litigants”, could do more to minimise that effect by explaining important judgments to the public by way of summaries. Lord Neuberger, the head of the court of appeal, has publicly supported this idea; the court of appeal should now lead the way.
Finally, even if unrepresented litigants have a better understanding of the law, judges still need to be capable of dealing with them. Lady Hale said that to avoid spending money on lawyers you have to spend money on judges, giving them “the right training [and] the right expertise”. This may involve training them to deal with unrepresented litigants. As a barrister, I have seen some judges treat unrepresented litigants with impatience and worse. Professor Richard Moorhead has blogged on interesting efforts in California to help judges, and if the MoJ is not already considering similar training, it should be.
None of these ideas alone will close the justice gap. Most unrepresented litigants will still be hugely outgunned if they are up against lawyers in court. For example, a barrister’s secret weapons – the criminal and civil law guide books – cost £435 and £508.10 respectively. Per year.
Nevertheless, much more could be done to increase access to law. Like a torte, the law is rich and multilayered. The public should be given a chance to digest it.
This article first appeared on Guardian.co.uk/law
[…] Access to the law goes beyond having access to a lawyer. Equally important is the ability to understand the law. In a speech she gave in 2011, Lady Justice Hale highlighted this reality when she said that a “great deal of time, trouble and money is wasted when the law is complex and unclear”. […]
It would be interesting to look at the total cost of the Civil Justice infrastructure and then identify on a pro-rata basis the proportion of taxes paid towards these costs by a. those earning less than 200k and b. those earning above this sum,including corporations.
Those earning less than 200k are likely to find themselves excluded from access to the Courts either because the financial risks are too great or because they no longer have access to Legal Aid. I suspect that ordinary taxpayers are now subsidising a Civil Justice structure which will mainly serve commercial/ corporate litigants. Why is the Legal Aid system not funded by a contingency fund whereby success fees are returned to the Legal Aid pot?
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