Every year, more people in England and Wales are involved in disputes before the civil courts in England and Wales than in the criminal courts. Over 1 million claims a year – for personal injury, debt, housing disrepair, faulty consumer goods or breach of contract, for example – are dealt with in the county court.
Hidden beneath this are at least another 3.5 million people who have a legal problem that could be dealt with by the civil courts but is not. This is because they either do not know that their problem is a legal one, they cannot access legal advice or assistance, or they cannot afford to do so.
Significant reform is coming for the criminal courts, which have a backlog of 80,000 pending prosecutions. But there is a longstanding gap in access to civil justice that has not received the same attention.
This gap has grown over the last 20 years as the Ministry of Justice has had to focus on criminal justice to a greater extent than it did in the past. In 2007, it became responsible for prisons as well as the courts, and has had to distribute its financial resources accordingly. Those resources have been reduced significantly over that period by the Treasury.
Reductions in funding aside, successive governments have repeatedly attempted to improve access to the civil courts. Of four significant reform attempts dating back to 1988, none led to any lasting improvement.
A leading international study, the World Justice Project’s Rule of Law Index, shows that achieving access to civil justice in England and Wales continues to be harder than in comparable countries, and has got worse since 2017. And, as a Legal Services Board examination of unmet legal need has also shown, that problem is most acutely focused on the most vulnerable members of society.
My new report for the Nuffield Foundation explains why those reforms failed. Primarily, they did so because they were substantially based on anecdotal evidence concerning the civil courts. They failed to identify the root causes of people’s access problems, such as a lack of understanding of their rights or where to access legal help, or a lack of trust in the legal system.
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Proposed solutions focused too much on reducing the cost and complexity of civil court procedures, rather than improving legal literacy. They were conducted on a piecemeal basis, and their implementation was either partial or undermined by other reforms. It was not unusual, for instance, for reforms aimed at bringing down the cost of litigation to be frustrated by reductions to legal aid provision.
Underpinning those flaws was a false belief that the civil justice system simply forms part of the service sector of the economy. In other words, that its purpose was to provide people dealing with legal problems with benefits that had no wider public utility.
In reality, civil justice is a public good. Through developing and interpreting the law, it provides a clear framework within which individuals and businesses can order their affairs, enter contracts, and buy and sell property safely.
Just as importantly, it provides the basis on which individuals, businesses and the government can be deterred from breaking the law – for instance, by incentivising the development and sale of safe products, or environmental protection.
Reforming civil justice for good
To tackle the problem of unmet legal need for millions of people, I propose several ways to improve civil justice reform itself.
As with many issues, prevention is better than a cure. Rather than focus just on access to the courts, reform should include access to legal advice and assistance that can prevent, or at least minimise, the chance that civil disputes arise.
Better, for instance, to promote compliance with regulatory requirements that protect the environment, require products to be safe before they are put on the market, or that requires doctors to treat their patients with skill and care, than having to litigate over non-compliance.
Where disputes arise, people should be able to access free and reliable legal advice and representation to resolve them, as well as access to systems – consumer ombudsman schemes or other forms of mediation – that can resolve disputes before going to court becomes a necessity.
Curing the problem also requires a change in the government’s mindset. It should explicitly reject the false belief, which has developed since the 1980s, that the civil justice system is no more than a consumer service.
Legislation should make clear that access to civil justice forms part of the constitutional fabric of society. It also underpins social and economic growth, a point recently emphasised by research examining economic growth in several countries from 1970 to 2019.
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Effective reform needs a sharp departure from the ad hoc, anecdotal approach of the past 40 years. It should be evidence-based, so that it can properly identify the causes of the access to justice gap. It should move away from a focus on court processes. Ease of access to the courts is, of course, essential, but it is not sufficient when the real gap lies elsewhere.
The bulk of unmet legal need arises before people even begin to consider how to access the courts. The government ought to broaden its focus and ensure that reform enables people – particularly the most vulnerable – to access the law, understand how it protects them, when their rights have been infringed and how to remedy such breaches.
This requires both political will and institutional change to enable the reform process to be carried out effectively over the long term. It also needs sustained financial commitment: effective design and implementation will take time if it is to be effective. This is a commitment that, if made, will repay dividends for individuals, businesses, the economy, and society as a whole.
