As the world finds itself stuck between Barbie and Oppenheimer, the Home Office finds itself stuck between the United Kingdom’s judiciary and a hard place (no surprises there). This time, the discussion is about ‘access to justice’. Hot off the (judicial) press, the case of R (on the application of Kumar) v Secretary of State for the Home Department [2023] EWHC 1741 (Admin) realigns what it means to promulgate ‘access to justice’.
It is accepted, both within the legal profession as well as by lay counterparts, that access to justice is fundamental for an effective judicial system. It was even noted by Lord Bingham in R v Secretary of State for the Home Department [2001] UKHL 26, that access to justice is fundamental to the upkeep of the rule of law, without which, of course, the entire system would crumble.
Put simply, it means that every individual should, theoretically, have the right to legal access should they require it. For example, if you were to be arrested for committing a crime, in majority of cases, you have the right to have legal representation to assist you in understanding the legal language (or legalese, for my fellow TikTok users).
This right is in line with Article 6 of the European Convention on Human Rights (ECHR), which states that every individual (with some exceptions, as all legislative frameworks will say), has the right to a fair trial. This includes having access to justice by having a legal representative present.
This is what was pondered in R (on the application of Kumar), where the Claimant had been granted Permission to Enter the UK on the basis that he was a student. When it was suggested that this grant may be rescinded, he was to be interviewed. The issue which arose was that the Claimant wished that he be joined by a legal representative during this interview. The Home Office, on the other hand, contended that the Claimant would not be allowed to have a legal representative. The High Court concluded in line with Article 6 of the ECHR.
Now, you would (reasonably) have the presumption that for something that has been accepted to be so important to the legal system, every corner of the UK does all it can to make access to justice a priority.
However, just last year, the Bar Council found that there was a significant decline in access to justice in the UK. Here are some of the statistics:
The question to pose, therefore, is why? We have a stringent legal system which is built on strong foundations. Despite this, there is something preventing the adequate legal outreach expected not only by the conclusions made in the above-mentioned cases, but under the legal frameworks the UK take so much pride in.
Through frantic hypothesizing, this article will assess why these statistics are so dire. Admittedly, there would be several factors to consider. However, due to the limited nature of this post (and your time), this discussion will be restricted to socio-economic factors and associated issues which have exacerbated the gap between people and proper access to justice.
When this article states socio-economic factors, it intends to refer to financial issues that people face which are worsened by other societal factors. It is accepted that this is a multi-faceted conversation, but the intention of this is not to start a riot, merely to ensure awareness of the problems affecting access to justice in the UK.
A 2022 report on this matter published by the Social Market Foundation addressed these matters. It noted that from 2014 to 2015, 52% of those who were had some sort of legal problem ended up handling things on their own rather seek any actual legal assistance. Of this group, 53% contended that having to do things on their own meant that they ended up suffering from stress. When you look at these numbers, they do not make sense. However, by putting yourself in the position of someone who does not have sufficient understanding, nor the appropriate funds to seek the advice of someone who does, it becomes clear why you would choose to handle things independently.
Of course, this discussion could not take place without a mention of the dire year that was 2020. It is well known that Covid-19 had had a detrimental impact on all aspects of the country. A government inquiry from 2021, despite praising courts for the way in which they were able to adapt to the pandemic by going online, established that the judicial system lost out massively.
The main point to consider here, however, was the scrapping of budgets. This meant that those individuals (which is the large part of legal clientele) who were relying on legal aid no longer had that support as those lawyers who were working on legal aid cases were no longer being funded to undertake their sizeable case load.
Likewise, the pandemic saw the closures of legal assistance charities such as Citizens Advice which has branches across the country. This only further exacerbated the detriment caused to access to justice.
After the (somewhat) demise of the pandemic, we have seen the number of legal aid undertakings increase again. However, this is not at the same rate, and therefore means that there is still a gap between justice and those who require it.
It is absolutely appreciated that the UK has one of the strictest legal systems in term of respect to the rule of law; such much so that it continues to impact others in the common law jurisdiction. However, it would be foolish for anyone to claim that the UK is doing the best that it possibly can. It is correct to establish that every individual has the right to access to justice. It is similarly appreciated that case law is reflective of this opinion. However, it is unfortunate to see that reality speaks a very different tale.
It is widely accepted that improvement of these socio-economic factors is an absolute necessity in order to build as a nation. However, this is a long and difficult road ahead. In order to ensure that access to justice is not undermined, budgets must be increased again, and legal assistance must be more accessible to all individuals. After all, justice for some can hardly be considered justice for all.
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