Lecture 7: Justice and Access to Justice

Question 1

What is ‘Justice’?

Answer 1

• Both the word and concept have ancient origins.
• Aristotle’s Nicomonchean Ethics book 5 – ‘Justice is to treat equal things equally and unequal things unequally according to the level of inequality.’

Question 2

Why is ‘Justice’ presented as blind?

Answer 2

• Treat as equal in a ‘formal’ sense.

* To be blind and not therefore judge the case based on ‘irrelevant’ differences.

Question 3

Different ways of conceiving ‘justice’:

Answer 3

What ‘the law’ or judges believe to be irrelevant factors has changed over time. Economic status, gender, nationality, skin colour, ethnicity, religion etc sexuality … were all deemed relevant and therefore justification for ‘different’ treatment at certain points in time.

Question 4

Distributive Justice:

Answer 4

• Distributive justice is the allocation of honour or goods among members of the community- with allocation based on merit. Merit is determined by the political view of the distributors.
• Law is also used to deliver and regulate distributive justice.
• For example, Social Security legislation giving access to state benefits and Tax law regulating whether and how much income tax a person might pay- whether they need to pay inheritance tax or whether they can claim a “tax credit.”

Question 5

Social Justice:

Answer 5

• Social justice movements may seem human rights focused but the concept of social justice combines elements of ‘distributive justice’ with a focus of the ability to enjoy human dignity and human rights – the equal worth of persons. Access to law and justice is an integral part of this and of achieving this.

Question 6

Corrective justice:

Answer 6

• Corrective justice is the righting of wrongs.

* When we talk of corrective justice we break it down into procedural and substantive justice.

Question 7

Procedural Justice:

Answer 7

• Relates to following the rules laid down for the proper conduct of legal business.
• In the US this is called ‘Due Process of the Law’.
• In the UK covered by Natural Justice Common Law rules on ‘natural justice’ and on Art 6 European Convention on Human Rights and Fundamental Freedoms – Right to a Fair Trial (incorporated through Human Rights Act 1998)

Question 8

Substantive Justice:

Answer 8

• Relates to the observer’s sense of the fairness of the outcome. Even if we agree proper procedures followed we may differ on whether we believe a case outcome was fair or not. Our belief may be based on both objective and subjective elements.
• Or whether we believe a particular statute (regardless of whether it has been passed constitutionally) is just.

Question 9

Access to Justice:

Answer 9

• Makes rights effective
• Furthers the ‘Rule of Law’
• Access to justice underpins the legitimacy of the state

Question 10

What factors hamper access to justice?

Answer 10

• The construction of the law itself or the failure of law to deal with certain matters.
• The availability of a remedy
• Gaining access to a court or hearing – in principle access should be the same for rich or poor, male, female; black and white.
• Problematic court procedures

Question 11

Protections:

Answer 11

• Common Law – right to natural justice – right to be heard, to have justice seen to be done as well as done,
• Art 5 ECHR
• Art 6 ECHR
• Art 13 ECHR (Not included in Human Rights Act 1998)
• Legislation and rights to equality e.g. - Equality Act 2010

Question 12

Recent Examples – Procedural:

Answer 12

Osborn v Parole Board [2013] UKSC 61
• Denial of an ‘oral hearing’ at the parole board for prisoners.
• An oral hearing should be held whenever “fairness” demands it.
• Procedurally fair decision-making engages at least two values beyond mere efficaciousness or accuracy: firstly, it avoids the sense of injustice that arises when a prisoner cannot participate a decision with important implications for him, and secondly, it upholds the rule of law by ensuring that lawmakers hear from those affected by the laws

Question 13

Funding for legal Services:

Answer 13

• Duty to ‘assist’ the claimant or defendant
• E.g. Airey v Ireland (1979) ECHR
• E.g. Steel and Morris v UK

Question 14

Legal Aid History:

Answer 14

• Lawyers acting pro-bono or accepting low fee’s-
• Dock Briefs
• Poor persons and poor prisoners
- Foundation of modern system Legal Aid and Advice Act 1949 – “assisted persons”
- “Means and Merits” tests for both civil and criminal legal aid. Viewed as part of welfare state and essential for social justice.

Question 15

Lack of Legal Aid:

Answer 15

• Civil issues - removal of conveyancing and other services from the sole preserve of solicitors. Lost income led to raised fees for litigation.
• Closure of law centres and other advice centres in 1980’s
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 – changed Civil Legal Aid landscape - Allowed regulations to be made which impacted a variety of areas.
• April 2013 – reduction of eligible persons and removal of aid completely from some areas such as:
• Family law cases, like divorce and custody (with exceptions for domestic violence)
• Personal injury including some clinical negligence cases
• Much employment and education law
• Immigration if the person is not being detained
• Debt, housing and benefit issues unless the person is in immediate threat of losing their home

Question 16

Why exceptions to legal aid is too late for lawyers to make a difference:

Answer 16

• Exemptions not in Act itself but in separate regulations
• Domestic violence – not domestic abuse -argued to be too narrow a term.
• Costs of getting evidence necessary to prove exemption.
• Re housing – argued advice comes too late (only when in immediate danger of losing home)
• Threat of criminal legal aid to lowest bidder –removed but still large changes which lawyers say are unacceptable.
• Removal of aid to prisoners
• People with over 3,000 a month disposable income
• People in UK for less than 12 months (not counting asylum claims)
• Lower fixed amounts for criminal law work.

Question 17

Arguments that Legal Aid is gendered:

Answer 17

• Prior to 2012 Act women made up 57% beneficiaries of Legal Aid.
• 65% of people losing support for family law cases are female.
- 73% of people losing support for Education cases are female.
- Cuts to other services supporting victims of domestic violence.
• Welsh Women’s Aid – say almost 50% of women’s refuge services had funds cut.

Question 18

Access to Justice regarding Employment:

Answer 18

• Payments for employment tribunals were introduced.
• To bring a claim initially £160 or £250 depending on how complicated with £950 if it goes to a hearing – to appeal to an EAT £400 to bring the claim 5,400 to have it heard.
• New cases presented to Employment Tribunals fell by 75% in the final three months of 2013 compared to 2012.
• Discouraging people with ‘weak ‘or ‘fictitious claims’ (as Pinsent Masons Sols. suggested) or preventing genuine cases from being heard.
• All cases must go to ACAS but are employers less likely to negotiate? Former ACAS manager believes so.

Question 19

Legality of restrictions on funding cases where domestic violence present:

Answer 19

• R (on the Application of Rights of Women) v The Lord Chancellor and Sec of State for Justice [2016] EWCA civ 91
• The Court of Appeal found that the restrictions in the LASPO in relation to domestic violence victims were not legal. Did not approach this from perspective of rights – though they referred to the definition of ‘violence’ in CEDAW.
• Regulation 33: Found requirement that ‘violence’ must be within 2 years of the application invalid. Also – must address victims of financial abuse.