Lord Falconer: We need a Right to Justice that people can afford

Amid cuts to legal aid and a wide range of unjust government actions, the former Justice Secretary calls for a new Right to Justice for the UK.

Our society rests on the premise that when people encounter problems – whether with their partner, their employer, their neighbour or the state – they can access legal advice and representation so that they may resolve their disputes in an orderly fashion. Today, for millions of people, this is no longer possible.

Whole areas of law have been taken out of the scope of legal aid. Court fees are becoming in some areas prohibitive. And many areas of law are so complex that without legal help accessing the right is virtually impossible.  Particularly pernicious are the cuts to social welfare law, those areas of law which are most likely to affect those on low incomes – such as housing, welfare benefits and debt.

Wrongful decisions on benefits are going unchallenged, landlords disregarding the rights of their tenants are free to do so with impunity, and parents seeking contact with their children cannot get the help they need.

Even where an area of law remains within the scope of legal aid, fewer and fewer people can qualify for it. Instead, they will have to represent themselves in court and add to the growing number of litigants in person, who have decidedly lower chances of success in the courts than those with representation.

The freedoms we enjoy in our society are a consequence of the rights which each of us possess which cannot be taken from us. The right to freedom of speech, the right not to be discriminated against, the right to hold your employer to account. But it is all too easy to celebrate these rights without considering what taking them seriously would look like.

Underpinning all of them must be a legally enforceable right to justice, so that when our rights are violated we can seek redress. Without it, our rights are meaningless.

The courts have ruled that some of the very worst Conservative reforms of the justice system are unlawful, such as the recent Supreme Court ruling quashing employment tribunal fees. But every time there is an egregious denial of our fundamental right to justice people should not have to resort to the Supreme Court. Ordinary people lack the means to do so, and besides the systematic nature of current injustices means there would be far too many cases for the court to deal with.

The final report of the Bach Commission, published today, proposes a pioneering solution which would ensure the right to justice was more than just a slogan. It proposes the passing of a new Right to Justice Act, codifying and supplementing our existing entitlements.

It would create a new right to receive legal assistance without costs people cannot afford. This does not mean every person would be entitled to free legal advice and representation. But those who can neither afford private help nor qualify for legal advice, would be able to get the support they need to realise their right to justice.

To be worthwhile these rights must also be enforceable. And that is why the Bach Commission have proposed that this Act creates a new body to enforce our right to justice. The Justice Commission would advise the government on what our right to justice means in practice and it would monitor whether that right was being delivered on.

It would also act as an enforcer, challenging the government in the courts and supporting court cases fought to defend our right to justice. Such a body would likely have prevented the government ever implementing its unlawful employment tribunal fees.

The right to justice is every bit as important as any other right we have. It is as fundamental as the right to health care or education. That is why I wholeheartedly support the pioneering proposals of the Bach Commission, which would transform the justice system and the lives of so many – the parent trying to keep their child who is unable to afford the legal assistance, or the benefit claimant, wrongly sanctioned by the DWP, who is unable to challenge the DWP’s poor decision.

This is not about wealthy lawyers looking after their own. Indeed, this report is notable for its single-minded focus on the right of ordinary people to access justice. As such, it should receive consideration and support from across the political aisle.

These proposals are not intended to arm one side in a game of political football; they are a serious approach to solving the crisis in the justice system and Lord Bach and his commissioners should be commended for it.

The final report of the Bach Commission has been published by the Fabian Society today.

Lord Falconer is a Labour Peer and Barrister, and was the first Secretary of State for Justice

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