Access to Justice

Maurice Hayes

Issue 393, vol.99, Spring 2010

A good case can be made for exempting free legal aid from the worst rigours of the cuts, on moral and ethical grounds – and on the issue of violation of rights. Human Rights are not an optional extra to be discarded in bad times.

During a recession, the over-riding social problem is going to be : debt. A new approach would treat debt in this light – and not as an occasion for imprisonment. Debt control needs a process where cases are dealt with in private, where agreements can be made with multiple creditors, where an enforcement office can attach earnings while protecting basic standards of living. All of this has been repeatedly advocated by the law centres, including the Free Legal Aid Centres.

Justice, however, goes far beyond the criminal justice system and the courts. Justice may simply consist in : the right to lead a quiet life undisturbed by intimidation, anti-social behaviour, threats of assault and robbery; the right not to be discriminated against; the right not to be bullied or oppressed by the agencies of the state; the right to an equitable share of public services for oneself and one’s dependents; the right to health and education; the right to a basic level of subsistence. The vindication of such rights, however (entailing the ordering of priorities and the share-out of funding), would seem to fall within the ambit of the political process – rather than to the courts in the first instance. Social welfare should be seen as a primary objective of policy – not as a secondary activity aimed at binding up the wounds of society’s weakest members.

A new complication is that, with legal obligations now flowing from the Treaty of Lisbon and from the European Charter of Human Rights, an adequate means is required for adjudication on rights. An array of tribunals and other appeal bodies will be established – to which it would be illogical to deny applicants free legal aid.

Apart from being comparatively trifling, any savings made by cuts to legal services are likely to be swallowed up in the cost of dealing with social breakdown. The costs of family breakdown (when children have to be taken into care or parents imprisoned for neglect) or of social disorder (leading to damage, and imprisonment) are enormous. Preventive approaches are now available to be tested – by way of mediation, conciliation, alternative disputes resolution, e.g., Community Restorative Justice.

As a model of joined-up services for justice in a local community, it has been suggested that all the agencies and voluntary and community bodies could be located at a single centre. These entities might even develop appropriate links of their own with official civic entities, for the sake of settling disputes. In any case Ombudsmen, tribunals and courts should be fail-safe mechanisms, not avenues of first resort.

Maurice Hayes is a former Irish Senator and Northern Ireland Ombudsman. This article is based on the Third Dave Ellis Memorial Lecture, given in Dublin on 1^st December 2009.