Lawyers and judges have a duty to help the justice system work - and could learn from eBay’s online dispute resolution procedures, according to the president of the Supreme Court.
In a wide-ranging speech at the Institute for Government thinktank last night, Lord Neuberger gave a strong warning that the cuts being made to legal aid and to the cost of litigation are likely to have a knock-on effect to the cost of the courts.
‘Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge-time,’ he said.
He defended as ‘entirely proper’ the ability of judges to speak up to defend the rule of law to the executive and to parliament, stressing that it is ‘fundamental’ that every citizen, particularly ‘the poor, the vulnerable, the disadvantaged’ should have access to justice to defend themselves or uphold their rights.
It is the primary duty of any civilised government to ensure the defence of the realm and the rule of law, he said. Securing the rule of law, he said requires ‘a high-quality and independent judiciary; an accessible and effective court system; and an accessible, high-quality, independent legal profession’.
Neuberger suggested there are currently two legal professions – lawyers who serve rich individuals and companies, and lawyers who serve ordinary citizens. Both, he said, are vital, but the latter are vital to the rule of law.
He added: ‘The former group of lawyers are doing fine, the latter are under intense pressure from the legal aid cuts and, at least in some areas, from an overmanned profession.’
He cautioned against the government’s moves to reduce access to judicial review in order to save money, saying the cost ‘is a small price to pay for a democratic and just society’.
But he said there is a duty on the government, the legal profession and the judiciary to work constructively together to maintaining access to justice ‘in the face of the harsh realities of government finances’.
He said: ‘Lawyers and judges have a duty to help make the system work, as well as warning of the risks of cuts.’
Judges, he said, have to look at procedures, and make them more efficient and proportionate, with more judicial control before and during hearings, including criminal trials.
In civil and family justice, Neuberger said that while the Jackson and Norgrove reforms will improve matters, more radical solutions may be required – such as dispensing with disclosure of documents and cross-examination, even with an oral hearing, in smaller cases.
‘Better to have a judge’s summary decision quickly at proportionate cost, than a disproportionately delayed decision at exorbitant cost, or no decision because it is too expensive to get to court,’ he said.
‘We may well have something to learn from online dispute resolution on eBay and elsewhere,’ he added. He was apparently referring to the online auction site’s resolution centre, which puts parties in dispute over a transaction in communication with each other.
Elsewhere in the speech, Neuberger announced that, on any appeal involving Welsh devolution issues, the Supreme Court panel will, if possible, include a judge who has specifically Welsh experience and knowledge. He said this may involve drafting in a judge from the Court of Appeal.
He also warned of a ‘diversity shortfall’ in the judiciary, ‘especially at the top’. He praised the Judicial Appointments Commission for its transparency, acceptability, professionalism, and lay involvement. But he said the commission came ‘at a price’ with greater cost, delay, loss of judicial sitting time, concentration on process and unhappiness for the unsuccessful.