Knowles: We all have a responsibility
Government, lawyers, the pro bono sector and advice agencies need to come together to create a new, integrated strategy for access to justice, a High Court judge has argued.
Sir Robin Knowles said the problem was “too deep now for a traditional, government-led, exercise alone. We all have a responsibility to work to resolve it”.
He also eyed up new sources of financial support, such as third-party litigation funders, while calling on the pro bono and advice sectors to simplify their offerings.
“We should get ready for the Legal Aid Agency, His Majesty’s Courts and Tribunals Service (HMCTS), Ministry of Justice, the ombudsman service, the profession, the pro bono sector and the advice sector, to sit down together on equal terms, openly, with an agreed chair or sharing the chair between them.
“The purpose would be to examine together, one step at a time, how their contributions could coordinate and integrate for the benefit of the public, and the system of justice.”
Sir Robin has long been a leading figure in the pro bono and access to justice worlds, and received a CBE for services to pro bono. He chairs the National Pro Bono Centre and has just become joint-president of Bar pro bono charity Advocate, with Lord Goldsmith KC.
Delivering the Advocate Lecture this month, he said it was “obvious that in England and Wales we have allowed ourselves to reach the point where the system of justice is simply not available to most people”.
At this point, the focus had to be on developing the best overall strategy with what there currently was, rather than hoping for more public money.
Sir Robin said there had been “chapters” to the efforts to address access to justice. “One chapter has built on the other, and we need them cumulatively. First a chapter of cooperation, then of collaboration, and most recently of some coordination. Not perfect; not complete. But positive and in the public interest and in the service of the public.
“The logical and necessary chapter is integration. And for legal aid to be part of that. So too, changes by HMCTS. Integration to the point where access is part of the system of justice. Not ‘here is the system of justice, what about access to it’ but ‘here is the system of justice and access to it is part of it’.”
Integration meant, for example, pro bono initial advice integrating with publicly funded representation in one area of practice.
“In another subject area it might be the other way round. No just ad hoc, but planned and agreed, and designed with reference to good value for the resources committed and to effectiveness and sustainability.”
He went on: “Integration can only help us develop better, safe, trusted points of access to the justice system from the start. To provide the more assertive outreach that actively takes services to people who are vulnerable.
“To improve the handover from early advice to further assistance and to lay a more efficient pathway to further help up to and including representation, defence, enforcement and appeal. Mediation could be welcomed more readily as an integrated part of the justice system… when it is alongside advice.”
A commitment to integration could leading to viewing court and tribunal buildings “differently so that they could become one of the main homes to access”, offering everything from early advice to court and tribunal hearings and enforcement.
“And with coordination and integration we might bring access to justice for small businesses into the picture rather than leave them outside.”
Sir Robin explained how everyone had a role to play. Universities, law schools and training institutions had to recognise that the sustainability of areas like housing law, benefits law and immigration was “part of their responsibility to society”.
The pro bono and advice sectors, meanwhile, needed “to simplify”. He said: “The position is today too challenging, including for resourcing and signposting and engaging. There might be partnership, joint working, consolidation and more.
“But a collective focus and commitment to an integrated result, and to the success of each other to that end would take us a long way.”
It has not always helped, Sir Robin observed, that awarding grants to charities by competition could deter collaboration and restrict strategy.
Integration would give provide a better opportunity to bring in other resources, he said. He pointed to the legal sector generating more levies than it could use to create apprenticeships in areas of social welfare law, because of a lack of resource to pay for supervision.
“Allowing some of the levies to pay for that supervision would make for more apprenticeships that the levies were intended to achieve.” This would need legislation.
Unclaimed compensation in collective competition cases could be made available to access to justice, he continued, while the long-standing discussions about bonds and contingent or community legal aid funds could be taken to a conclusion.
Another suggestion was to call on litigation funders to create “a new funding model directed to a particular area or court user, allowing us to reserve legal aid or pro bono resources to help others” – or to make “a serious financial contribution, adding materially to legal aid and pro bono resources”.
“I am not talking about the modest contributions volunteered so far, welcome though they have been. I am talking about the type of contribution that shows commitment to the system of justice by a responsible participant in that system. In the same way that thousands in the profession commit to a pro bono contribution.”
Sir Robin added: “We will need the assistance of those with expertise we don’t traditionally have. Those whose profession is technology and AI of course, but also delivery and logistics, behaviour and health, rather than the law. We need their ideas, not just ours.”
The other key task, the judge said, was to move from resting on public trust to sustaining it “through building public understanding of the system of justice”. Everyone had a role in this too.
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