What is the Rule of Law?

In the United Kingdom, the rule of law is a very long-standing principle which underpins the way in which the country is governed; its fundamentals can be traced back to The Magna Carta in 1215, and the Bill of Rights in 1689. There are numerous definitive citations which encapsulate the essence of what the rule of law is, or is meant to be. Thus:

‘The mechanism, process, institution, practice or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power’  –  Encyclopaedia Britannica

‘The rule of law is a political idea that all citizens and institutions within a country, state or community are accountable to the same laws, including lawmakers and leaders’ –  Wikipaedia

There is no single universally agreed definition, suffice it to say that the themes of accountability and equality before the law are recurrent.

 

What is Access to Justice?

It is a very basic principle of the Rule of Law; a vital part of making the Rule of Law a reality – fairness for all. The concept is brilliantly summed up by Michael Mansfield KC, who has described it as:

‘a much broader concept than access to the Courts and litigation…………It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems.’

Succinctly stated, but how do we adequately address the interests of those ‘ordinary and vulnerable people’ who lack the means to pursue and protect their rights? State funded legal aid provided considerable salvation in the UK during the post-war years, and in relation to issues such as crime, housing, health, family and personal injury claims. Indeed, state funding is an internationally recognized concept, and it is typically synonymous with the workings of the welfare state. Its importance in terms of upholding the central tenet of the rule of law cannot be overstated, and we in the UK may be forgiven for regarding the latter half of the 20th Century as being the ‘golden age of legal aid funding’. Nonetheless, the social, political and economic landscape has changed over the decades, and some alternative models of legal funding have been introduced; moreover, the availability of legal aid has been significantly constrained, or even withdrawn.

 

Recent Legal Aid Reforms

Over a decade ago Ken Clarke (the then Justice Secretary) introduced a raft of radical reforms to the legal aid scheme, perhaps more radical than anything seen since its post-war inception. The fiscal fundamentals of the changes at that time broadly involved the removal of some £350 million from a budget of £2.1 billion. In so doing, Mr Clarke said:

 

‘I genuinely believe access to justice is the benchmark of a civilized society.’

The reforms understandably attracted a great deal of criticism, and much concern was voiced about potentially adverse implications for our access to justice. Was this just another step towards becoming a less ‘civilized society’? A difficult question to answer, and as is invariably the case, we have been left to ‘suck it and see’.

 

Where are we now?

The National Audit Office is set to review the sustainability of legal aid. The public spending watchdog will this Winter review just what sort of value of money is being procured from the legal aid services. It is anticipated that the review will primarily focus upon:-

  • What progress (if any) the government has made since publication of the National Audit Office’s report on civil legal aid in 2014, regarding the implementation of reforms under the Legal Aid, Sentencing and Punishment of Offenders Act
  • How well the government practically facilitates the financial sustainability of legal aid
  • How the government ensures that legal aid achieves access to justice as intended.

The 2014 report had concluded that the Ministry of Justice was on course to achieve substantial and swift reductions to expenditure in civil legal aid. What was however far less clear was the degree to which those who needed legal aid funding most were effectively targeted.

The time scale for completion of the National Audit Office findings is unclear, but its importance cannot be understated. The government will, in due course, consider their next legal aid strategy based upon their own review of the legal aid system.

 

Closing thoughts

We live in difficult times, and we are patently aware that the public, and indeed the public purse, face so many monumental and arguably unprecedented challenges. Be that as it may, we should also be acutely aware of the grave dangers of relegating our treatment and perception of the rule of law to no more than an exercise of financial accounting. Eroding, maybe even demonizing, the vitality of justice and accountability is dangerous, and we should be vigilant of any conscious or unconscious steps in that direction. Measuring the success of reforms purely by reference to financials is a temptingly easier avenue to take, and in comparison, to the other rather intangible concepts involved. We should remain acutely aware of the longer-term dangers posed by any creeping disenfranchisement within our system; having a voice, accountability and access to justice is priceless.

‘Nowadays people know the price of everything and the value of nothing’

– Oscar Wilde (The Picture of Dorian Gray)