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It was ‘entirely proper’ for judges to speak out over concerns about access to justice, Lord Neuberger, President of the Supreme Court said in a speech at the Institute for Government. The judge argued that there were currently two legal professions – referring not to barristers and solicitors – but those lawyers who served ‘rich individuals and companies’ and those who served ‘ordinary citizens’. ‘Both are vital to this country,’ Lord Neuberger said; adding that the former were ‘doing fine’. ‘The other lawyers are vital to the rule of law: without competent legal advice and representation, legal rights would be worthless,’ he said. ‘[They] are under intense pressure from legal aid cuts and, at least in some areas, from an overmanned profession.’
‘The most obvious topic on which the judiciary can properly contribute, and sometimes have a duty to contribute, is the rule of law. It is therefore entirely proper for the Judiciary to stress to the executive and parliament that it is fundamental to the rule of law that every citizen, perhaps above all the poor, the vulnerable, the disadvantaged, should be able to go to court to vindicate their rights or to defend themselves, whether to challenge excesses of executive power, to protect private rights, to be compensated for wrongs, to secure family rights, or to defend themselves if prosecuted.’
Lord Neuberger said that legal advice was ‘beyond the means of most people’ for three reasons: legal services were ‘expensive’; court procedures were ‘not always proportionate’; and money for legal aid was ‘scarce’.
‘The duty to face up to these problems does not just lie with the Government,’ he told the Institute; adding that the Government’s legal aid bill ‘increased very substantially’ between 1965 and 2000 ‘but it has been cut since then, and the Ministry of Justice is now, regrettably, if unsurprisingly, proposing a significant further reduction’. ‘There is a fundamental public duty on the government, and also on the legal profession and the judiciary to work constructively together with a view to best maintaining access to justice in the face of the harsh realities of government finances.’
Lord Neuberger flagged up judicial initiatives to make court procedures ‘more efficient and proportionate’ such as the Lord Justice Jackson’s reforms and David Norgrove’s family justice review. But, he said, ‘more radical solutions’ might 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’. ‘We may well have something to learn from on-line dispute resolution on e-Bay and elsewhere,’ he said.
Lord Neuberger offered two ‘specific warnings’ to the Government on the legal aid cuts. ‘It is a mistake to have a new legal aid regime with a costs structure which will drive out the best lawyers,’ he said. ‘Good lawyers save money because they are less likely (i) to waste time in and out of court; (ii) to be responsible for miscarriages of justice; and (iii) to engender appeals and retrials.’
Secondly, he argued that the money problems faced by legal aid were also faced by the courts and it was ‘vital’ for the Ministry of Justice to appreciate that any changes which were made to reduce legal aid were ‘likely to have a knock-on effect on 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.
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