Breaking down barriers

But, what if someone cannot access courts or advice and the protection they may offer? In this case, access to justice becomes as much an issue as the laws themselves. Bearing this in mind, how have Christians, children of a just God, approached this issue of access to justice and the problems people may face? And what can we all do to help bring down the barriers?

In 2015, after changes to the provision of financial assistance with legal issues (legal aid), the report Speaking Up – Defending and Delivering Access to Justice Today was published by Theos. It warned that these changes were putting access to justice at risk for the poorest in our society. In a foreword to the report, representatives of several Christian organisations, including the Evangelical Alliance, endorsed its conclusions.

The report’s authors, Andrew Caplen, former President of the Law Society of England and Wales, and David McIlroy, a barrister, root their argument around access to justice in the Old Testament, where there is a clear focus on ensuring that the law is accessible to all, regardless of circumstances. In Deuteronomy, Moses appoints judges who can hear disputes effectively (Deuteronomy 1:16).

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God’s people are also to speak out on behalf of those who have no voice of their own (Proverbs 31:8) and judge impartially (Leviticus 19:15). Biblical justice is not simply a matter of writing good laws, but establishing a justice system to which all have equal access.

People need advocates within such a system – those who are able to speak for each party in a case. The report notes that: ​“Advocacy is a skill. It requires the capacity to assimilate and organise information, to identify which features of a situation are important and which are not, and the ability to be able to tell a coherent story.

“Good advocacy helps a judge to do justice because the advocate can help the judge to see the real issues in the case and so to discern who is in the right and who is in the wrong. An advocate represents someone. They present a case in a structured way so that those deciding can get the heart of the problem and can see the wood for the trees.”

In the Old Testament itself, this role is often played by the prophets, who often speak out on behalf of the poor and vulnerable in Old Testament Israel. For us today, in a different context, access to justice (including legal advice, institutions and education) must be a key priority for Christians. However, problems have regularly been reported in the allocation of legal aid, in the local availability of legal advice, and in legal literacy in society, which undermine this principle.

Obstacles to justice

Legal aid as we know it was introduced 70 years ago this year, with the Legal Aid and Advice Act 1949. It sought to ensure that no one was too poor to have their rights protected by the courts. However, in recent decades the demand for legal assistance has grown. Caplen and McIlroy attribute this to several different factors.

These include rising public awareness of legal rights and a growing demand for accountability in the use of power. In addition, the law has become much more complex, as the government provides more and more services, for example. Social and technological changes, such as a rise in divorce rates or issues around data protection online, have also led to a greater demand for lawyers by rich and poor alike.

As an attempt to reduce the cost of legal aid, in 2012 the government limited the number of people eligible for it, as well as put many legal issues beyond its scope. These issues included most cases concerned with welfare, immigration, education, housing and debt. However, this has meant that the most vulnerable cannot always access legal representation when faced with decisions that will often result in lifelong consequences.

This has become particularly controversial as it relates to people with disabilities, whose benefits are covered under Personal Independence Payments (PIP). A BBC report last year highlighted that those who appealed against negative PIP decisions were subject to long delays, and campaigners noted that 72 per cent of all such refusals were overturned on appeal. (Those in England and Wales do not have access to legal aid for these appeals.)

In other cases, more overt financial barriers to making claims have been overturned by the courts. For example, in 2013 the government introduced fees for bringing employment tribunal claims. When these fees were introduced, there was a 68 per cent decrease in employment tribunal cases being brought. However, in 2017 the issue of employment tribunal fees was brought to the UK Supreme Court, where they were declared unlawful,

In 2017, the Bach Commission on access to justice recommended ​“a significantly simpler and more generous scheme for legal aid”. This call was echoed in 2018 by the Joint Committee on Human Rights, in a wide-ranging inquiry on the extent to which rights could be enforced. The government is currently reviewing the eligibility requirements for legal aid, as part of its Legal Support Action Plan.

Access to legal advice is another area of concern. The bodies that represent solicitors (the Law Society) and barristers (the Bar Council) in England and Wales have warned against the rise of legal advice ​‘deserts’, where there are few or no providers of legal advice. On housing, for example, a Law Society review found that 37 per cent of the population live in local authorities with no legal aid provider on housing issues. Meanwhile, over three quarters (35 million people) have one provider at most, which may be far from where they live. Citizens Advice Bureaux and local law clinics are invaluable in such areas, but they too may struggle to stay open.

A similar problem arises with courts, as it is reported that around half of magistrates’ courts in England and Wales have closed since 2010. This means that people who need to go to court may be forced to travel some distance, which may be difficult or impossible for many by public transport. This increases the risks of injustice, further delays and additional costs. Technological solutions have been proposed to overcome this difficulty, but they have increasingly been found inadequate for disabled people, such as the visually impaired.

The image of a ​‘desert’ is well-chosen for this situation. A desert, after all, is not barren because the laws governing how plants grow are suspended for a certain section of the planet’s surface. Under the right conditions, the Sahara Desert would be the Sahara Rainforest. Similarly, it’s not as if people in certain areas of the country don’t have rights when it comes to housing or on other issues. However, the institutions that allow people to access those rights are not there – starved as they are of the necessary resources. Good legislation is not enough. Thankfully, this is being recognised, as campaigns on this problem has attracted cross-party support from MPs.

Educate and resource

Recent reviews of access to justice have, commendably, not stopped at resources alone. As in other policy areas, resources often need to go hand in hand with education and a culture change. On education, both the Bach Commission and the Joint Committee on Human Rights raised concerns at a lack of legal knowledge and education in the wider population.

In schools, for example, the rule of law is taught as a fundamental value of modern Britain. However, the rule of law is not simply an abstract value. It is, instead, represented in a concrete set of institutions that promote and administer justice. Knowledge of how those institutions work is surely essential if British values are to be anything more than words on paper.

But legal education does not stop at schools. A whole variety of organisations can produce resources that help build capacity. At the Evangelical Alliance, for example, we have helped to produce guides to the law on free speech (Speak Up), employment (Christianity in the Workplace), and property (Firm Foundations), which aim to give Christians and churches an understanding of the law and how it works.

More broadly still, there’s a point to be made about how our culture sees people who are seeking legal redress. In their 2018 report on enforcing human rights, Parliament’s Joint Committee on Human Rights noted the importance of a culture that respects rights, raising concern about media misreporting of human rights claims when they came to court.

The same may be said about legal aid, which tends to hit the headlines when provided to someone the media believe to be undeserving. When reading such stories, we should remember that the most vulnerable may often need to seek legal solutions, may require assistance when doing so, and may be vulnerable to misrepresentation. In such circumstances, we should pray for the eyes of Christ with which to view their situation.

What can we do?

Access to justice is not just a matter for lawyers, and there are several things we can all be doing to promote it:

1. Pray for all those in need of legal assistance, for lawyers who work with them, and for government ministers currently working on reforming the system.
2. Speak out if issues of access to justice are important to you. You can get in contact with your MP and ask what they and their party will do for the most vulnerable in society who need legal representation.
3. Volunteer with organisations that help people who need legal advice, such as Citizens Advice Bureau or a local law centre. Christian organisations or local churches may also have their own projects. If you know of a good example, please do get in touch with us at info@​eauk.​org, as we continue to highlight work on this vital issue.