Lecture 7: Justice and Access to Justice Flashcards
What is ‘Justice’?
- 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.’
Why is ‘Justice’ presented as blind?
- Treat as equal in a ‘formal’ sense.
* To be blind and not therefore judge the case based on ‘irrelevant’ differences.
Different ways of conceiving ‘justice’:
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.
Distributive Justice:
- 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.”
Social Justice:
• 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.
Corrective justice:
- Corrective justice is the righting of wrongs.
* When we talk of corrective justice we break it down into procedural and substantive justice.
Procedural Justice:
- 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)
Substantive Justice:
- 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.
Access to Justice:
- Makes rights effective
- Furthers the ‘Rule of Law’
- Access to justice underpins the legitimacy of the state
What factors hamper access to justice?
- 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
Protections:
- 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
Recent Examples – Procedural:
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
Funding for legal Services:
- Duty to ‘assist’ the claimant or defendant
- E.g. Airey v Ireland (1979) ECHR
- E.g. Steel and Morris v UK
Legal Aid History:
• 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.
Lack of Legal Aid:
- 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
Why exceptions to legal aid is too late for lawyers to make a difference:
- 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.
Arguments that Legal Aid is gendered:
• 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.
Access to Justice regarding Employment:
- 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.
Legality of restrictions on funding cases where domestic violence present:
- 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.
