Insuring everybody's access to justice

The debate about legal aid rumbles on. Commitments are few, platitudes are plenty, but of solutions there are none. For those who have a continuing and sincere interest in access to justice, after stripping out all question of vested interests, the position is dire.

Leaving aside, for one minute, those who do qualify for legal aid, the vast majority of the population that remains has no prospect in the foreseeable future of being in a position to engage in litigation or indeed in any form of dispute resolution, unless it is on the cheap, or provided as an adjunct as part of a particular transaction in which they are currently engaged.

No political party has a clear policy and neither the legal profession nor its near relations seem to have a continuing interest in finding a permanent solution that would benefit the population as a whole.

It may be asked if there are indeed solutions? Yet it cannot be beyond the wit of the people involved in the legal profession generally to devise some means of access to justice. Yet somehow it continuously eludes us. Other countries seem to have the same problem, and yet somehow it does not seem to be so pressing.

Is it that the British are contentious or is it the system itself that is at fault? Or is it even worse – are we lawyers saying any solution has to be on our terms and no one else's?

Legal expenses insurance has been around for some time. It is not the most popular solution but it is a solution, and it could become a permanent solution if certain steps are taken.

I would identify those steps as follows: first, some form of tax relief, for the time being, for the premiums that will be payable in respect of such a policy. Those of us who are older will remember the days in which tax relief was given for life insurance and endowment policy premiums. No doubt at the time they served a useful purpose, in just the same way as tax relief in respect of a legal expenses insurance policy would serve a useful social purpose now. It would certainly enable the problem of adverse selection to be solved and it would mean an increased interest in the policies themselves.

The second important step, however, would be to ensure that such insurance did not become the captive either of the insurance companies or of the legal profession. This in turn would probably involve an arrangement whereby the selection of lawyer was left on a freer basis than is currently the case, and also that the legal costs, in turn, became more rigorously controlled and segmented throughout each claim. This happens in Germany and it would be possible to apply it to this country.

Third, all this could go hand-in-hand with the Woolf reforms which lend themselves to being utilised in such a way.

If there is a serious commitment on the part of our leaders to produce genuine access to justice, not just for the poor or for the rich but for the majority of the population, now is the time to tease the problem out into the open and to produce, at least, new ideas, if not completely new solutions.