Little access to little justice
22 February 1999
Dan Brennan asks why the Access to Justice Bill does not have a set of clear objectives that outline what its intentions are.
THE GOVERNMENT is keen to emphasise that the Access to Justice Bill will provide greater access to justice for citizens and that it is not a Bill "for lawyers".
Why, then, does the Bill not have clear objectives to set out its intention? At the report stage, Lord Lloyd of Berwick moved an amendment with "a bold statement of the objectives" applying to the provision of legal aid.
"The policy objectives and national principles are not set out in the Bill, which contains no parameters or criteria for the exercise of high powers by the Lord Chancellor, but are simply left to be supplied by directions. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act," states a select committee report.
At the committee stage, the Lord Chancellor pointed out the need for the Bill to set out objectives. Unfortunately, in the Government's amendments for the report stage, the strength and clarity of the expected objectives were not found. Lord Lloyd was driven to describe the amendments as a "dismemberment" of the purpose of the clause.
His new objectives clause required all those operating within the legal aid system to ensure that:
people have access to legal services which they are otherwise unable to obtain through lack of means;
they have access without discrimination on account of disability or geography; and
the legal services provided are such that they give "equality of arms" against those who do have the means to obtain legal services.
The first objective sets out the commitment of section 1 of the Legal Aid Act 1988. The second objective deals with those suffering from disability. In the report by the Director General of Fair Trading on "Vulnerable Consumers and Financial Services", he pointed out that those with "disability may experience difficulty in obtaining services".
The law is no special case and difficulties will arise. That is why, when following the Disability Discrimination Act 1995, the Disability Committee of the Bar Council suggested the Legal Aid Board guidelines be changed to reflect that "the nature of the client's disability in itself may require additional time or resources to be expended". Other forms of potential discrimination are protected by other legislation. Who is to protect the disabled under this new Bill?
Discrimination based on geography is a risk. We must avoid all available resources being concentrated in the large cities. Access to justice should be made equally available to those living in rural communities or the deprived areas of large towns and cities.
The third objective is drawn from the new rules of procedure following the Woolf report. Of course, the legally-aided client cannot be guaranteed the same quality of lawyers as the other side. But the point of legal aid is to ensure that the way it is funded attracts good lawyers to represent the legally-aided.
It was therefore very surprising to find that soon after the amendment was carried against the Government, a spokesman for the Lord Chancellor's Department described the clause as "a gimmick".
To ascribe such a sobriquet to these objectives is a worrying approach by the Government. Of course legal aid should be subject to available resources, but that does not override the need to set out the basis on which those resources are to be spent. Objectives clauses put in by legislators are designed to bind the executive to deliver the promises that are made in political rhetoric. The public has the right to seek judicial review of any failure by the Legal Services Commission to do so.
Consumers facing a future with a new legal aid system look for protection. Objectives give such protection.
The Government should not seek to strike out this clause in the Commons. If the Bill's intention is to improve access to justice, then that intention is best served by a Bill with these objectives in it.