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Lord Neuberger: Too late to restore ‘Humpty Dumpty’ civil legal aid

It is ‘fundamentally wrong’ if citizens and businesses cannot obtain legal advice

5 July 2017

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The ‘severe restriction’ of civil legal aid over the last 20 years has left many people with ‘unedifying’ choices, according to the outgoing president of the Supreme Court, who doubts whether the system can be restored to pre-21st century levels.

Speaking at the Australian Bar Association (ABA) biennial conference in London this week, Lord Neuberger said: ‘Many people, including me, feel that things took a wrong turning in civil legal aid in 1999 and we have all been busy hoping or even trying to put Humpty Dumpty back together again – but like all the King’s horses and all the King’s men, I am not sure that we can do it.’

The president of the UK’s highest court said he feared it was 20 years too late to turn the clock back to revive the philosophy underlying The Legal Aid and Advice Act 1949 that ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right’.

Neuberger, who is to retire later this year, bemoaned the impact of the Access to Justice Act 1999 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that has left many people faced with the ‘unedifying choice of being driven from the courts or having to represent themselves’.

Moreover, he said the substantial increase in litigants in person represented a ‘serious problem’ for judges, court staff, and for other litigants and their lawyers.

The provision of legal aid is a necessary part of access to justice, which in turn is a fundamental aspect of the rule of law, said Lord Neuberger, who echoed comments made by the president of the Australian Bar Association that ‘there is little appetite by government to make [access to justice] a priority’.

Lord Neuberger told ABA members that the government’s record on making money available to those in need of legal advice and representation had been ‘patchy’ and said it was vital for ordinary people to be able to enforce their rights.

‘It is simply wrong, and fundamentally wrong at that, if ordinary citizens and businesses are unable to obtain competent legal advice as to their legal rights and obligations, and competent legal representation to enforce and protect those rights and test those obligations in court,’ he said.

‘Obtaining advice and representation does not merely mean that competent lawyers exist; it also must mean that their advice and representation are sensibly affordable to ordinary people and businesses: access to justice is a practical, not a hypothetical, requirement.’

Andrew Langdon QC, chair of the Bar Council, said Lord Neuberger’s words added ‘considerable weight’ to the concerns voiced by lawyers that ‘the decline of legal aid since 1999 poses an increasing threat to the rule of law at home’.

‘There needs to be a complete rethink on the availability and sufficiency of legal aid to prevent a dislocation of the law from the very many who cannot afford its protection,’ added the Guildhall Chambers silk.

Lord Neuberger also used his speech to make clear that while much of the responsibility for ensuring access to justice lies with the legislature and executive, lawyers and judges have an equal duty and cannot ‘get away with standing on the sidelines and criticising’.

The Supreme Court justice also took the time to champion the work of lawyers and organisations who provide free legal advice to those most in need. ‘The voluntary and charitable bodies, many of whom it is only fair to record are assisted by the government (but not, it must be said, generously) are heroic.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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