Bach Commission recommends minimum standards for access to justice

Deficient public legal education, high court fees, and the failure to embrace technology have deprived a growing number of people of access to justice, a new think tank has said as it unveiled a set of proposals intended to fill the gap left by the near-disappearance of legal aid.

In its interim report published this morning, Lord Bach’s Commission on Access to Justice proposes to enshrine minimum standards in law, along with the introduction of legal education in the school curriculum and a central online portal for claims.

Other proposals include the reform of legal aid eligibility criteria, a ‘polluter pays’ scheme to fund court fees, the integration of legal advice across public services and increased funding for legal advice centres.

‘For citizens to act on their right to justice, they need the capacity to identify a problem as legal in character, understand the help to which they are entitled and select an appropriate service,’ the report said. ‘Public awareness of the law is at dangerously low levels. Nearly half of individuals who experience a legal problem put it down to “bad luck”, while 40 per cent describe their problem as merely social or bureaucratic.’

Respondents to the commission’s call for evidence also cited court closure and higher fees as a reason not to pursue a claim. A total of 146 courts closed between 2010 and 2015, with a further 86 earmarked for closure earlier this year.

Online courts championed by Lord Justice Briggs in his July 2016 report on the structure of the civil courts, are being promoted as a realistic alternative to face-to-face justice but they are yet to become reality. The project has also given rise to concerns that it could result in the digital exclusion of large parts of the public who do not have access to technology.

Central to the Bach commission’s proposal is the design of ‘minimum standards for access to justice to be enshrined clearly in law – which could include legal aid for all those who need it, equality of arms, sufficient and comprehensive legal education, and the availability of accessible technologies of triage’. These standards could be enforced by an independent inspectorate similar to the chief inspector of prisons, holding the government to account over the justice system.

The report also advocates the scrapping of the legal aid gateway, which it says isn’t working, and the adoption of a ‘polluter pays’ principle. This could see the introduction of a levy on government bodies whose decisions are quashed beyond a particular threshold, which would contribute to the funding of future cases.

Public legal education was also seen as a key component that could help prevent disputes in the first place. In his evidence to the commission, Richard Susskind said: ‘The ambulance should be at the top of the cliff. The state should play its part in promoting dispute avoidance. We need to reduce the need for dispute resolution by placing a fence at the top of the cliff. Legal education is an aspect of this.’

The commission will consider how legal education could be integrated more efficiently into schools ‘such that it feels relevant and empowering for everyone’. It will also examine how basic knowledge of legal entitlements could become universal, with a focus on typically hard to reach groups such as older or disabled people.

The report’s fifth and final strand focuses on technological innovation, which it says ‘has a vital role to play in ensuring that people can secure access to justice in an effective and efficient way’. However, echoing the concerns of many stakeholders, the commission suggests this should come in addition to face-to-face help.

Technological innovation would centre on three projects: an online portal similar to the Dutch Rechtwijzer system, an innovation fund experimenting with how new technologies can help with legal services, and the online small claims court recommended by Lord Justice Briggs.

The next stage for the Bach commission is to design more detailed policy solutions, subject to raising sufficient finance to fund the project. Part of that is expected to come from a crowdfunding campaign. Assuming the research moves to that second phase, the commission will hold further hearings on key aspects such as technology and public legal education, before finalising proposals by the summer. 

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg