3 - Access to justice: whither legal aid?

Summary

Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists … it is fundamental that justice should be the same, in substance and availability, without regard to economic status.

Supreme Court Justice Lewis F. Powell, Jr.

In England, justice is open to all– like the Ritz Hotel.

Justice Mathew 1830–1908, 
quoted in R. E. Megarry, Miscellany-at-Law (1955)

Access to Justice is a social good: the ability to participate in public redress or resolution systems is a measure of the health of any system of government, particularly in a democracy.

The Law Society of England and Wales, 
Access to Justice Review, 2010, para.1.2

The public good and access to justice

In Chapter 2 I looked at the efforts of lawyers over the years to define the best interests of the public with respect to the profession and professionalism, and how these had come under challenge in recent years. Next I will be looking at how lawyers over the years have sought to define the best interests of the public in relation to access to justice, and poverty legal services in particular, and how here too their efforts to define the public good have come in for challenge. The solution, I will argue, lies in fuller and more comprehensive dialogues between the stakeholders.

‘Access to justice’ as a phrase can be traced back to the nineteenth century, but as a concept it is a comparative newcomer to the political firmament, coming into frequent usage only in the 1970s. Since then there has been no holding it. Hundreds of books, articles and reports have included it in their title, not to mention a swathe of initiatives from lawyer associations, politicians, governments, charities and NGOs around the world. As the redoubtable Roger Smith noted in 2010, ‘In general … the phrase “access to justice” has a well-accepted, rather vague meaning and denotes something which is clearly– like the rule of law– a good thing and impossible to argue you are against. The strength and weakness of the phrase is in its nebulousness.’ In short, access to justice is like ‘community’ in being a feel-good concept– one that everyone can sign up to with uncritical examination.