2Access to justice and the rule of law
The preconditions necessary for enforcement of human rights
11.The right to an effective remedy is enshrined in all major human rights treaties. Most notably, Article 13 of the European Convention on Human Rights (ECHR)10 provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. Article 13 is not explicitly listed in Schedule 1 of the Human Rights Act 1998 as one of the Articles given effect to by that Act, because the Act itself is deemed to give effect to this right.11
12.The fundamental importance of the right of access to justice is recognised in Article 6(1) ECHR, and the European Court of Human Rights (ECtHR) has said that it is essential to ensure that rights are ‘practical and effective, not theoretical and illusory’12 The Court has interpreted this to include a right of access to a court which may in certain circumstances require publicly funded access to legal advice to be available for the right of access to a court to be practical and effective.
13.In deciding whether free legal assistance is necessary the ECtHR has stated it will consider the particular facts and circumstances of each case, taking into account:
i)the importance of what is at stake for the applicant;
ii)the complexity of the case or the procedure, particularly when legal representation is mandatory by law; and
iii)the capacity of the applicant to effectively exercise his or her right of access to court.13
14.Access to justice is an essential component of the rule of law. In his seminal text, Lord Bingham listed it as one of his eight principles of the rule of law in these terms:
“Means must be provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.”14
15.Lord Reed JSC, commenting in the Unison case, warned that the intrinsic link between access to justice and the rule of law is not always fully appreciated by policy makers:
“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other.”
16.The evidence we received, summarised in Chapter 3, suggests that the Government’s approach to achieving its legitimate aim of reducing the legal aid budget has fallen into the trap highlighted by Lord Reed. Legal advice and assistance is available for those who have the means to pay for it but is out of many people’s reach. A fundamental rethink about how legal information, advice, assistance and representation is delivered in this country is needed to solve this problem. Improved access to legal aid, while necessary and urgent, may not be the whole answer.
The need for a strategic approach to securing access to justice to enforce human rights
17.In a world of finite resources, it is vital that access to justice is viewed in its widest sense. Strategic investment in advice services, education and regulation can prevent breaches of people’s human rights and reduce the need for expensive court processes after the event. Moreover, improved training for public officials can help to ensure that human rights breaches do not occur from the outset (before needing any recourse to the Courts).
18.Better provision of easily accessible advice services was a recurrent theme in our inquiry. For example, help to address debt problems or welfare benefits at an early stage could prevent relatively minor problems escalating into major ones which could threaten an individual’s human rights. Lord Thomas of Cwmgiedd told us:
“There is a case for looking again at better integration of the advice given by lawyers, the third sector and lawyers employed by the local authority. For the foreseeable future, in the light of fiscal conditions in this country, I wonder whether it is realistic to expect solicitors, who want to earn a reasonable living, to be paid out of legal aid funds. I may be completely wrong; there may be money for it. I am rather sceptical as to whether that would ever happen. There is an urgent need, particularly in respect of post-industrial and rural areas where there is a lot of poverty of different kinds, to look for the proper provision of advice that is not necessarily through the traditional mechanisms.”15
19.Improved public legal education (PLE) and human rights education (HRE) have an important role to play in helping individuals to know their rights, to identify for themselves when they have experienced a potential breach of their human rights and therefore have a case to take. These issues are discussed in more detail in Chapter 6.
20.The experience in Scotland is instructive here. An independent review of legal aid was published in Scotland in February 2018. The review highlighted that Scotland’s legal aid spend per head is among the highest in the European Union and has both the widest scope and eligibility. In the report, the Chair, Martyn Evans, Chief Executive of the Carnegie Trust, said:
“I found, rather to my surprise, that the Scottish legal aid service compares very well internationally. That finding should not lead to any complacency. The vision I suggest seeks to move Scotland towards having one of the very best services in the world.”16
21.Despite this positive assessment, he also concluded that a fundamentally new approach was needed to further secure access to justice:
“We need to rethink legal aid and in doing so, widen it to encompass the whole range of what I have called ‘publicly-funded legal assistance’ [ … ].
In my review, the term ‘publicly-funded legal assistance’ will be used to describe the wider services that include information and advice about the law and alternative means of resolving legal problems, help in preventing or resolving disputes, and help in enforcing decisions. It includes advice that is often not described as legal, for example welfare rights advice, housing advice, money and debt advice and consumer advice. This wider definition allows for a strategic approach that is rooted in the current pattern of complex service provision and user need.”17
22.The ability to know about and enforce human rights is vital for the rule of law to be a reality. As well as the current review of the impact of legal aid reform in England and Wales, there is a pressing need for a much wider evaluation of the broader landscape of advice, support and means of resolution for legal problems to assess how they can collectively better serve individuals faced with a breach of their human rights. Such a process must also consider the economic viability of the whole system.
10 See also the following, all of which have been ratified by the UK, Article 8, Universal Declaration of Human Rights; Article 2 (3), International Covenant on Civil and Political Rights; Article 2, International Covenant on Economic, Social and Cultural Rights; Article 6, International Convention on the Elimination of All Forms of Racial Discrimination; Article 2, Convention on the Elimination of All Forms of Discrimination against Women; Article 47, Charter of Fundamental Rights of the European Union
11 Human Rights Act 1998, Schedule 1
12 Airey v. Ireland, Series A No. 32, 2 EHRR (1979–1980) 305
13 See such cases as Airey v. Ireland, ECHR 9 October 1979 (Application No. 6289/73), Benham v. the United Kingdom, ECHR 10 June 1996, (Application No. 19380/92), P., C. and S. v. the United Kingdom, ECHR, 16 July 2002 (Application No. 56547/00) and R (Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622
14 The Rule of Law, Tom Bingham (London, 2010)
16 Martyn Evans, Rethinking Legal Aid, An Independent Strategic Review, February 2018, p 1
17 Martyn Evans, Rethinking Legal Aid, An Independent Strategic Review, February 2018, p 1
Published: 19 July 2018