Access for everyone

While avidly supporting the proposed modernisation of the courts, David McIntosh is adamant that changes to the system should not be entertained if they exacerbate social exclusion

In this article on access to justice, I had intended to concentrate primarily on issues such as court closures, rather than dealing with legal aid fee levels.

However, in view of the Lord Chancellor's recent announcement that a pay freeze has been imposed on hard-pressed legal aid practitioners, I feel I must comment on that.

The Prime Minister commented a few days ago that 'the public see the scars of underfunding'.

That applies to legal aid, just as much as to our health service and our schools.

I fear for the future of our legal aid service and consequently, for the rights of individuals to access justice.

I know that many legal aid practitioners consider themselves badly let down by the government and the Legal Services Commission, with which they have tried to build effective partnerships to promote access to quality services in their communities.

We at the Law Society are conducting research to assess the likely impact of this announcement on the ability of solicitors to continue to offer publicly-funded services.

I urge the profession to co-operate fully with this research, to ensure that we get an accurate picture to present to the government.

It is all the more astonishing that this announcement follows shortly after the publication, last November, of a collaborative paper between the Lord Chancellor's Department and the Law Centres Federation, concerning the vital contribution that legal and advice services can make to tackling social exclusion.

The paper comments that 'poor access to advice has meant that many people have suffered because they have been unable to enforce their rights'.

The paper explores the development of the Community Legal Service, which provides a framework for local networks of services, based on local needs and supported by local partnerships within the community.

Those partnerships would, typically, include not only solicitors, but also the commission, local authorities, Citizens Advice Bureaux, law centres and other independent advice centres, along with other community-based organisations and agencies.

In principle, it must be right for those involved in the provision of legal services in the community to have a real say in assessing need and plugging any gaps, to ensure access for all.

In her report, Paths to Justice, published in 1999, Professor Hazel Genn says 'a clear message that emerges from the study is the profound need for knowledge and advice about obligations, rights, remedies, and procedures for resolving justiciable problems'.

There is no doubt that the availability of good legal advice early in a dispute can avoid the escalation of many problems into formal legal proceedings.

But court action cannot always be avoided.

For some, the only adequate forum for resolving their disputes is a court.

Therefore, if we aim to tackle social exclusion at every level we must ensure easy public access to the courts.

Paradoxically, while focusing on the need for legal services at community level, the Lord Chancellor appears to be operating a programme of court closures at that same level, preferring instead to place courts into more regional centres.

For some years now, the Law Society has called on the government to launch a proper public debate on this issue so that the courts' modernisation programme and any consequent closure of smaller courts is based on a sound all-round strategy, rather than on a purely cost-driven or ad hoc basis.

Before closing local courts, it is important to assess what impact closure is likely to have on would-be court users.

I support whole-heartedly the need to modernise our courts, and in particular the need to take advantage of technology to allow us to stream-line procedures in the interests of parties and their advocates.

It is absolutely right that we should do so.

I recognise that not all of our courts could accommodate the infrastructure needed to equip them with up-to-date technological systems and that, as a result, some courts will need to be re-sited elsewhere.

However, I caution against the assumption that all litigants can readily travel long distances to courts - many of those on welfare benefits, or with child care responsibilities may consider it necessary to forego their right to a legal remedy if they are unable to afford the cost or inconvenience of travel to a regional court centre.

Equally, although technology can help some to access their 'local' court remotely, those unable to understand - or to afford - technological aids will become excluded.

We must, as professionals, promote and embrace change.

However, change should not be introduced simply in our self-interest, or just for the administrative convenience of the Court Service or of the judiciary, or for purely budgetary purposes.

At every step, we must carefully assess the impact of proposed changes on consumers of legal services and ask: will this help us tackle social exclusion? If the honest answer to that question is negative, we must re-think the proposals until we find a solution workable in the interests of all - and ultimately, therefore, in the interests of access to justice.

David McIntosh is the Law Society President