A blueprint for a simpler, fairer justice system
11 November 2011
The Civil Justice Council (CJC) has just released a major new report: Access to Justice for Litigants in Person (or self-represented litigants). The report attacks head-on the prospect of thousands more people having to represent themselves in court once civl legal aid is mostly taken away.
The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.
It is not possible to summarise everything in the report, but I will highlight a few parts which jumped out at me. For a full executive summary, see page 8.
First, the problem. It is generally accepted that the huge impending reduction in civil legal aid will lead to many more litigants in person, which the report rebrands as “self-represented litigants”, and there is a real risk that this increase will clog up the courts. The report states, in clear terms:
The forthcoming reductions and changes in legal aid will have the most serious consequences. This is not simply because of their scale, it is also by reason of their design and incidence. Among other things they will have a disproportionately adverse effect on the most vulnerable in our society.
Litigants will enter the courts, probably bleary eyed from trying in vain to locate the relevant law and procedure on the internet, to find
a system of real quality, but one designed for lawyers, and which as a consequence was and is far too complex and obscure for those representing themselves. It is hard to overstate just how difficult it can be – for the person, for the court, and for other parties – when someone self- represents.
The result is
a legal system that the world admires and which is the forum of choice for much international litigation. But it is not a legal system designed with self-represented litigants in mind.
No easy answer
On important point, possibly the most important, to take from the report is that there is no easy answer to this problem, and given the nature of our fiercely adversarial justice system, possibly none at all. Any proposals therefore amount to ointment rather than a cure. One of the more radical statements made by the CJC is that
The proposed reductions are a matter of regret. This is because, if the focus is on the individual citizen (and not the lawyer), their legal rights can be as important as their health, deserving of the same respect, and meriting equivalent support.
So the withdrawal of civil legal aid will probably lead to a contraction of justice in any event. However, it does provide a useful catalyst for reforming a system which needs reform anyway. Therefore,
Everything must be done to simplify and demystify the law and the system, including its language. This includes Court forms, procedures and hearings.
The report paints a bleak picture of our confusing and intimidating legal system, but there is a small exception, the small claims and fast track procedures launched by the Civil Procedure Act in 1997:
In one area of the civil courts the experience of self-represented litigants seems generally to have been positive, although there remains room for improvement and further research. Small claims hearings are designed for self-represented litigants. The nature of the hearings is usually less adversarial and more inquisitorial or interventionist than in higher courts.
If more hearings can take the simplified form, then this will make the justice system slightly friendlier to self-represented litigants. But this will involve an expanded, central role for judges, who are already:
at the apex of the civil justice system.
They hold the key to case management and need to be given the support – in training and administration – that they require. Mediation also gets a mention, but not in any great detail.
Traffic jam on the information superhighway
Outside of court, the growth of the web and social media (the latter sadly ignored by the CJC) presents an obvious opportunity. To that end, the CJC offer a number of suggestions, mainly focussing on the fact that there is no single website where people can go to find information about the court system and law.
At the moment, information is split between the Directgov website (which I find to be sometimes bewildering, sometimes useful), the court services and the Ministry of Justice. The committee also point out something I have lamented in the past, that
Even the Government’s legislationwebsite is not up to date.
As I have said before, no government department should be permitted to rely on a law in court unless it is accessible online. There is a huge amount to do on internet law; case summaries, press releases, up-to-date legislation. The report highlights a couple of interesting projects, and concludes that it is
beyond question that the power of the web has not yet been fully exploited to help meet the needs of those with problems that could be resolved through access to justice
But any solution will cost a lot to build and even more to maintain. And in any case, technology can only go so far:
While technology and improved written materials are essential, they are not alone sufficient to achieve the support required. People are the most important resource for all self-represented litigants, but especially the most vulnerable.
Lawyers still needed
This is the crux of the problem; as alluring as it is to think that an average member of the public could litigate their own case with a few well written internet resources and a friendly judge, there is no real substitute, particularly in our adversarial system, for a lawyer representing them in court. A member of the public is no more likely to self-represent effectively in complexly litigation than they are to perform surgery on themselves. To that end, the CJC make recommendations on making the pro-bono system – within which lawyers act for free – better organised and coordinated.
Realistically, there will be nowhere near enough pro-bono lawyers to go around. To fill the gap, the CJC highlights the importance of Public legal education (or PLE) as
the true starting point for helping the public and thereby those who could become self-represented litigants. The regulatory objective of increasing public understanding of the citizen’s legal rights and duties is important.
However good it is, PLE is not going to replace lawyers, but it may limit the need for them in certain limited scenarios. One of the report’s recommendations is that a series of “nut-shell”-type guides are produced for various areas of law. Happily, the CJC highlights the excellent work of fellow barrister-blogger Lucy Reed and her book, Family Courts without a Lawyer, as an example of such a project.
As I have pointed out before, solicitors now have a responsibility under their code of practice to help out with PLE:
The regulatory objectives set by the Legal Services Act 2007 expressly include increasing public understanding of the citizen’s legal rights and obligations. This regulatory objective, alongside the related objectives of promoting the public interest and promoting the interest of consumers, is now more important than ever in light of the proposed reductions and changes to legal aid.
What this means in practice is anyone’s guess, but it is the responsibility of the profession’s regulators and standards bodies to encourage lawyers and would-be-lawyers, to think about this laudable aim seriously.
A big mess
The coming years and the expected avalanche of litigants in person will probably change the face of the justice system.This is therefore a timely report, and one which was needed in any event.
As you can probably tell, there is a huge amount there, and much to be discussed in the coming months and years. But my impression is that the problem is almost too big to approach in an environment where the justice system is being starved of funding.
As such, the CJC is right to focus on relatively cheap measures with potentially significant effects; however expensive a new web system is, it will cost a fraction of the hundreds of millions being saved (in theory, at least) following the cuts to legal aid. Equally, “nut-shell” type guides, if they are well written and updated regularly (it has to be once or twice per year for them to be useful), will be helpful.
More fundamentally, an enlightened view is needed from the Ministry of Justice; it must be right that making the justice system simpler will also make it quicker, and this will generate other savings. It will also make it fairer for those who cannot afford lawyers, and even through the fog of the financial crisis, this should be the basic aim of any reforms.
There are plenty of suggestions in the report as to how the legal profession can help out. Given the scale of the problems, there is only so much the profession – including judges – will be able to accomplish.
The Law Society and Bar Standards Board have taken a strong stance on the legal aid cuts; once the battle is lost (which it almost certainly will be), the focus should shift to public legal education and encouraging lawyers and would-be-lawyers to see themselves as responsible for increasing public understanding and access to the justice system. We also need to think carefully about whether we are doing enough pro-bono work – see my post How much free work should a lawyer do?
The CJC provides an important blueprint for a fairer and better system; it should be listened to, its recommendations taken seriously and, most importantly, funded. My fear is that there will be neither the will nor the money to carry out the transformation that the justice system really needs.
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