Legal aid and access to justice: Back to basics
Leading authority on civil justice, Professor Dame Hazel Genn provides a unique insight into the purpose of legal aid and asks whether a smarter approach to legal services is now needed.
Professor Genn's presentation, 'Legal aid and access to justice: Back to basics' was given during a review of legal aid in October 2009 as part of the Law Society's Access to Justice Project. Firstly, Professor Genn looked at the fundamentals of access of justice.
View the presentation slides (84 KB)
Fundamentals of access of justice are listed as:
- an awareness of rights, entitlement, obligations and responsibilities;
- an awareness of procedures for resolution;
- the ability to effectively access resolution systems/procedures; and
- the ability to effectively participate in the resolution process to achieve just outcomes.
Professor Genn promotes access to justice as a social good saying that people's ability to participate in public redress or resolution systems is a measure of the health of democracies.
Looking at first principles she lists the key purposes of publicly funded legal services. For the individual they are:
- enforcement of rights
- dispute resolution, and
The social purposes of publicly funded legal services are listed as:
- supporting social order
- supporting economic activity
- supporting the social justice agenda
- supporting the social inclusion agenda
- supporting the rule of law through the control of the executive, and the
- promotion of legal health.
Following a review of recent findings, including those of the Legal Services Research Centre and her own findings published in 'Paths to Justice: What people do and think about going to law' in 1999, Professor Genn suggests that there needs to be:
- a refocusing of justice policy thinking - the development of 'customer' orientation and an expansion of policy beyond legal aid issues
- an alignment of justice policy with broader government objectives - the development of understanding the link between access to justice and social inclusion agendas, and
- guidance on legal aid policy thinking - to look at how to make more effective use of legal aid spend to meet citizens needs and designing services their needs in mind.
Civil legal aid is protective and restorative. It is both the barrier at the top of the cliff (information, advice and public legal education) and the ambulance at the bottom of the cliff (advice and representation)
Access to civil legal aid is particularly important during recessions. The civil justice system supports the enforcement of rights, access to entitlements and the resolution of conflicts that might flow from recession. It is necessary, she says, to not only lift up people who are social excluded, but equally and importantly, prevent people from sliding into social exclusion.
The presentation advocates better joined-up thinking. Professor Genn argues that unresolved justiciable problems lead to pressures on other services and budgets. Protecting civil legal aid can reduce:
- the cost of unresolved legal problems appearing in other budgets
- prevent or reduce the social and economic costs of unresolved problems
- public expenditure on physical and mental health, benefits and social housing arising from problems being left unresolved.
The presentation also made the point that poor decision-making on, for example, benefits can increase the cost of running the justice system, as can unjust social housing policies.
Professor Genn recommendations for a smarter approach to advice include:
- an emphasis on avoidance and early advice intervention
- making advice more accessible
- renewing an interest in public legal education - recognising 'unnecessary' helplessness, facilitating self-help and knowledge and skills development.
Professor Genn's 'Back to Basics' analysis clearly shows that a more imaginative and ambitious justice system - one that includes public legal education - is needed to meet current and future legal needs.
In March 2010, the Law Society published an interim report on Access to Justice (514 KB). This important contribution to the debate on legal aid says that '... it is important that people should be aware of their rights and the remedies available to them. Public legal education has an important role to play in this context.'
Professor Dame Hazel Genn
Professor Dame Hazel Genn is a leading authority on civil justice whose work has had a major influence on policy-makers around the world. She is currently Dean of the Faculty of Laws and Professor of Socio-Legal Studies at University College London. Professor Genn has been a major advocate of public legal education and was chair of the Public Legal Education and Support Task Force in 2006.
On 27th November 2008, Professor Genn delivered the 2008 Hamlyn Lecture on civil justice. The Hamlyn Lecture 'Judging Civil Justice' was published by Cambridge University Press in October 2009. See flyer to order a copy
Professor Genn is author of companion volumes Paths to Justice: What people do and think about going to law (1999), and, with Alan Paterson, Paths to Justice Scotland: What Scottish people do and think about going to law (2001), which report the findings of two major national surveys into public use of and attitudes to the legal system.
More about: Professor Dame Hazel Genn
Legal Services Research Centre
The Legal Services Research Centre (LSRC) is the independent Research Division of the Legal Services Commission (LSC). It was set up in 1996 to inform legal aid policy and the implementation of reform. Professor Genn refers to the English and Welsh Civil and Social Justice Survey which is a large-scale nationally representative household survey of people's experience of, and behaviour surrounding, civil justice problems, as well as other studies, including two editions of Causes of Action: Civil Law and Social Justice (2004 and 2006).
More about: Legal Services Research Centre publications