Access to justice is the hallmark of a civilised society.
These words were spoken by the United Kingdom’s Justice Secretary, Ken Clarke, in 2010.
In fact it was with those words that the Justice Secretary introduced his government’s radical changes to legal aid. Justice Secretary Clarke’s changes, which he described as reforms, amounted to a demolition job on publicly funded access to civil justice.
At the time, I wondered if the Justice Secretary really did genuinely believe that access to justice is the hallmark of a well-functioning democracy.
I certainly do. Access to justice is a fundamental common law right. The issue is what does access to justice mean – the tensions between available resources, proportionality and access to justice services and legal representation is constant. New Zealand’s reputation as one of the least corrupt countries in the world depends on a well-functioning justice system providing affordable and timely justice.
Affordability of access to justice is increasingly an issue in our society. As the Chief High Court Judge, Justice Helen Winkelmann, said in the 2014 New Zealand Law Foundation Ethel Benjamin Address: “Present levels of civil legal aid inevitably mean that many individuals cannot look to the courts to enforce their rights or obtain a remedy for a wrong”. The provision of civil legal aid, she said, “is critical to ensuring access to justice”. Justice Winkelmann then went on to talk about those who come to court to enforce their rights, but come unrepresented because they lack the money to pay a lawyer.
“You might think that people arguing their own cases before courts is the system operating how it should, people are accessing the courts. But fundamental aspects of our system of justice are built upon the assumption that parties will be legally represented. This means that growing levels of unrepresented litigants are a challenge to the functioning of that system. Equally as important is the fact that those who come before the courts unrepresented risk being disadvantaged by their lack of representation,” she said.
This issue of LawTalk has a particular focus on self-represented litigants. It is an important topic for the profession. The figures we have seen on unrepresented litigants show that they are increasing, and that this increase has followed government policy changes, such as changes to legal aid and to the Family Court.
This increase in the number of people appearing in person indicates that something is simply not right.
I do not for a moment say that it is solely the problem of the profession. The Ministry of Justice, in particular, and the Government, judiciary and other institutions are looking closely at these issues. There is no one silver bullet but the problem is multifaceted, as are the options for responding to it.
The data is scarce and much of the information describing the problem is anecdotal. One of the things the Law Society is doing is gathering together as much information as possible and disseminating it.
Access to justice is a rule of law issue, and the law in New Zealand – as provided in the Lawyers and Conveyancers Act 2006 – states that it is a “fundamental obligation” of lawyers to “uphold the rule of law and to facilitate the administration of justice in New Zealand”.
The law itself, then, gives us a duty to act on this matter of vital importance to the whole fabric of our society. As a profession, we need to look at this problem in the context of the whole issue of access to justice – not only as it affects lawyers, but as it affects society as a whole. For these reasons access to justice will be a major focus for the Law Society this year.