It is common knowledge that certain fundamental rights have been universally recognised and set out in international declarations such as the Universal Declaration of Human Rights and the European Convention on Human Rights. These include the rights to life, liberty, freedom of expression and so on. But what makes these rights meaningful? According to A.V. Dicey, rights that are the result of judicial decisions granting remedies to individuals are more meaningful than general declarations of rights. This principle was recognised in the UNISON case, where the UK Supreme Court acknowledged that access to the courts is a fundamental right because it gives people access to other rights. Although declarations of rights by national legislatures and international organisations are extremely important, these rights are effectively meaningless without the ability to enforce them through the courts. This is why the right of access to justice is particularly important.
(Image Source: EUROPEAN PARLIAMENT, ACCESS TO JUSTICE IS A FUNDAMENTAL RIGHT)
Access to justice may be defined descriptively as the ability to access legal information, legal advice or representation in court. Normatively, it may be defined as the ability of each individual to gain an effective remedy through the courts and protect their rights in the same way as others around them. In the UK, the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) in 2012 restricted the right of access to justice. By reducing the circumstances in which people are entitled to legal aid, the Act made it more difficult for individuals to gain legal advice and representation if they cannot afford to pay for it. This has resulted in a shrinkage of the advice sector and an increase in the number of self-represented litigants. Although in theory everyone has access to courts, those who are better off financially are likely to enforce their rights more effectively because they can afford to pay for legal advice and representation. This violates the normative conception of the right of access to justice, or the “ideal of equal access” as Cornford calls it.
(Image Source: THE LAW SOCIETY, LASPO HAS RESTRICTED THE RIGHT OF ACCESS TO JUSTICE)
In response to this situation, different bodies – including McKenzie Friends, university law clinics, and voluntary bodies like Support Through Court (formerly the Personal Support Unit) and the Citizens Advice Bureau – have stepped in to fill the gap by providing legal information and/or advice to people who cannot afford to pay for it. Significantly, courts have also been responsive, as shown by the case of Al-Ahmed v London Borough of Tower Hamlets. In this particular case, the Court of Appeal held that an applicant’s lack of representation and search for legal aid constitutes a “good reason” for making a late appeal under section 204 of the Housing Act 1996. In this context, this meant that even though the applicant had missed the deadline for the appeal because it was difficult for him to gain legal advice and representation, he was still given the opportunity to defend his right. This shows that the courts have the power to promote access to justice by taking into account the practical challenges of gaining legal advice in a post-LASPO context.
(Image Source: PRO JUSTICE, LASPO HAS RESTRICTED THE RIGHT OF ACCESS TO JUSTICE)
Overall, the efforts by voluntary organisations and the courts are not perfect solutions to the shortage of legal advice and representation following LASPO. In the words of Lady Hale, they are “patchy” and “do not make up for the lack of properly informed advice from a skilled person”. But they are nevertheless commendable steps that aim to fill the gap created by LASPO, thereby moving us closer to the idea of equal access to justice for all.