Whose law is it anyway?

26 July 2011 by

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

1 comment;

  1. Julia Cahill says:

    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?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: