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From the Law Society

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Challenges to the rule of law

“Shortage of money is one of the big issues which in many countries today confronts the rule of law in general, and access to legal advice and representation, and hence the legal profession, in particular. And in the long run it could risk undermining public confidence in the rule of law.”

This was one of the key messages delivered by Lord Neuberger, President of the United Kingdom Supreme Court, in his keynote address to the World Bar Conference on 16 April. Lord Neuberger was talking to an audience in Edinburgh, and no doubt had the legal systems in the British Isles closest to front of mind, but the warning applies equally to New Zealand.

The need to improve access to justice, to help maintain the rule of law, and to preserve the privileged role of lawyers in our justice system, are all key areas of focus for the New Zealand Law Society. It is important that the New Zealand Law Society champion these issues for the benefit of consumers and for practitioners.

As our new President, Kathryn Beck, has identified, these issues, together with other challenges – including the promotion and retention of women in the law, and Practising Well – will “continue to require focus and significant direction from the leadership of the profession”.

In what was an entertaining and discursive speech, Lord Neuberger highlighted positive features of the legal systems of the British Isles, which we share. In common, we have a high-quality late-entry judiciary, an oral advocacy tradition, and independent advocates who, by and large, provide sound advice to clients, and who responsibly assist the court. Each of these characteristics help to preserve confidence in our legal system and to maintain the rule of law.

The ‘reward’ to lawyers, for their contribution to this system, is exclusivity in relation to the reserved areas of work and, in particular, some rights of audience denied to others. In order that these privileges are not (further) eroded, lawyers must play their part in ensuring that access to justice is enhanced. The key issue is cost.

As to cost, Lord Neuberger said “legal advice and legal representation must be affordable to the average citizen”, but recognised that this need gives rise to one of the “really major problems” for while there are a “significant number of lawyers who do very well financially, there are many more lawyers, especially those concerned with most criminal and family cases, as well as with housing, social security and other legal issues of a welfare nature, who can scarcely make ends meet.”

New Zealand is no different. Costs are a problem but so, too, is the absence of proper rewards for able lawyers who contribute to the maintenance of the rule of the law.

In searching for solutions, Lord Neuberger struck a positive note: “Having said that, the economic pressures, like most challenges, have their upside as well as their downside. They force us to address access to justice and proportionality issues when, without the funding crisis, we might carry on regardless. I am certainly not saying that the upside is as good as the downside is bad. However, the financial squeeze which is being applied to so many areas concerned with the rule of law in general, and access to justice in particular, does make us question many of our cosy assumptions and practices, which is no bad thing.”

One might argue that the situation is more acute in New Zealand than in some comparable countries. In relative terms the gap between the high quality (and roughly, by extension, the cost) of our system and the value of disputes is often great. Moreover, the capacity of many ordinary litigants to pay for any, much less quality, representation, is often very modest.

If we, as lawyers, are to maintain our privileged positions then we do need to challenge our own “cosy assumptions” about how we deliver value to clients and maintain public confidence. The balance of Lord Neuberger’s speech traversed topics as diverse as artificial intelligence, and online dispute resolution. Maybe answers lie there? Maybe we need to radically revisit the jurisdiction and composition of the Disputes Tribunal? Maybe we need to ask whether modest disputes can sensibly bear the burden of the costs which come with a fully adversarial system?

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