The next chunk of posts on a Welsh justice system and independence look at the judiciary, court system, legal profession and access to justice.
With hindsight, this should have been split up into shorter pieces as it ended up covering more topics than I originally planned. As a result, it’s one of the longest posts I’ve ever done – so apologies in advance to those of you who stick with it.
What does “Access to Justice” mean?
“Access to justice” broadly means the ease by which an individual or organisation can seek legal remedies through the justice system. It’s one of the cornerstones of the “rule of law“. If people are denied equal access to justice then the legal processes can’t be fair or proportionate.
For this piece, “access to justice” will focus on how easy (or not) it is for people or organisations to get legal advice at the right time and go to court.
The single biggest barrier to access to justice in Wales is money (and I’ll be turning to Legal Aid shortly). The other barriers could include:
- Physical – Court closures result in longer journeys, while outdated buildings (such as police stations and solicitors offices) and antiquated procedures may present barriers to people with disabilities or make legal hearings more intimidating than they need to be.
- Legal Education – The common law system (Part IVa) is very difficult for an ordinary person to navigate compared to those who’ve studied law. People may not fully understand their rights when under arrest, stopped and searched or detained.
- Discrimination & Mistrust – As mentioned previously, there’s a high level of distrust in the criminal justice system amongst people of colour (Part III). If people don’t believe they’ll get a fair hearing in the criminal justice system, they may view trials and arrests fatalistically (instead of properly challenging them), or be unnecessarily defiant (such as pleading not guilty to something they’ve been caught bang to rights doing) making the situation worse and resulting in disproportionately harsher sentencing.
- Poor Quality Advice – As in any other walk of life, while solicitors and barristers are professionally regulated and vetted it doesn’t always mean they’ll be good at their jobs. Some may be very good in one particular area of law but once they’re asked to step outside that they may struggle. However, such specialisation may make seeking proper legal advice more difficult and more expensive because you have to pay the best to get the best.
Access to Justice: Options for Wales
The court system/physical access to courts will be looked at in more detail later:
Greater use of less formal tribunals and out-of-court dispute resolution – Instead of going through the full court process, the less formal tribunal system could be used to deal with certain lower-level grievances which may be cheaper and prove less intimidating (i.e. a housing tribunal to deal with eviction cases).
This would be one step towards the Thomas Commission’s proposal of “problem-solving courts”. Out-of-court dispute resolution could be encouraged (where applicable) too to save time and money, whether through an ACAS-style civil dispute resolution body or a process led by lower courts for civil and family cases.
Mandatory legal education – It’s become fashionable in Wales to pick a topic, put “education” after it, then demand that it’s included in the school curriculum. It should be no different with legal education, which would certainly fit with the new national curriculum’s goal of creating “active citizens”.
The obvious things to focus on would be legal rights – both in general terms (constitutional rights) and in specific situations like being arrested or searched. A certain level of legal education is needed to deal with housing, learning to drive and relationships too – so you can argue it’s as much a life skill as first aid or finances.
Legal technology – Technology could be further developed to draft certain legal documents instantly or very cheaply with limited supervision by solicitors and other legal professionals. Use of artificial intelligence could be explored further too. You could see this potentially being useful for litigants in person (people representing themselves in court) to prepare statements or legal arguments.
Regulated fees – Fees for some routine legal services could have a fixed rate applied – whether by regulatory bodies or the government – meaning clients will have a greater idea of how much legal work will cost before seeking it.
An “activist” legal advice service for communities who are fearful of the police and the justice system – Priti Patel hates “activist lawyers”, but if we want to ensure proper access to justice we should embrace them and fund them even if they tell us things we may not like to hear. Whether such a service can be provided through an existing charitable organisation (like Citizens Advice) or a new organisation, it needs to – ideally – be run by and for people who would otherwise miss out on good quality urgent legal advice.
That includes people of colour, sexual assault and rape victims, the homeless (or soon to be homeless), the disabled, asylum seekers/refugees and anyone else potentially facing discrimination or the threat of abuse. There are already some free legal clinics out there, but it might be a more efficient use of the legal aid budget if a proportion was ringfenced for such a service (with contributions from the police and local authorities). Give it an easy to remember telephone number and/or app backed by a public information campaign and such a service could prove popular very quickly.
