Access to Justice: Legal Principle and Practical Reality

By Professor Mark Elliott

Constitutional Law students discover early in their studies that the principle of access to justice is jealously guarded by courts. In a series of well-known cases, courts have demonstrated a strong commitment in this area, characterising access to justice as a common law constitutional right and backing this up through a willingness to read Acts of Parliament in strained — and, some would say, untenable — ways to ensure legislation does not trespass upon the right. 

Thus, in the Anisminic case, the Appellate Committee of the House of Lords famously held that a statutory provision which said that the determinations of a public body ‘shall not be called in question in any court’ did not prevent courts from ruling on the legality of such determinations. More recently, in the Privacy International case, the Supreme Court took a similarly robust approach to a similarly (and even more strongly) worded provision. Lord Carnwath went so far as to say that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude [judicial] review’. This at least came close to suggesting that access to justice is such an important constitutional principle that not even Parliament can disturb it. 

Views differ on whether judgments like Privacy International — and, in particular, the sort of approach adopted by Lord Carnwath — go too far. Some argue that such thinking is an affront to parliamentary sovereignty, in the face of which (on one view) other constitutional principles, even those as important as the rule of law and related principles such as access to justice, must yield. But leaving that particular controversy to one side, it can certainly be said that the courts have shown a strong and long-standing commitment to access to justice. The question nevertheless remains: how far does this get us? 

It is all very well for courts to use their powers of statutory interpretation in a way that limits the circumstances in which Parliament is found to have disturbed (or, on a more radical view, is capable of disturbing) the constitutional principle of access to justice. Such an approach certainly helps to guard against individuals being disabled from exercising their right of access to justice. But in some — indeed, many — situations, the removal of such a disability is not sufficient to enable the right to be exercised. Why? Because exercising the right of access to justice very often costs money — and often costs a lot of money. Many forms of legal proceedings are in practice inaccessible to those who are not legally represented, and representation does not come cheaply. Either the individual claimant or defendant must pay for it or someone else must do so. The brutal reality is that the constitutional principle of access to justice rings decidedly hollow if judicial rhetoric is unmatched by funding. 

The courts are not blind to this. Indeed, on occasion, they have taken significant — even surprising and controversial — steps to recognise and deal with this issue. A good example is the UNISON case. Regulations made by the then Lord Chancellor, requiring fees to be paid by most people who wished to make use of the Employment Tribunals (no such fees having previously applied), were found to be unlawful. This case was significant from a legal point of view because of the approach it took to statutory interpretation, affirming the courts’ willingness to interpret legislation in the light of fundamental constitutional principle. Thus, construed through the prism of the rule of law — which requires access to justice — the primary legislation under which the fees regulations had purportedly been made was found not to allow the Lord Chancellor to do what he had done. The practical implications of this interpretation were also significant — access to justice in the Employment Tribunals context was preserved for many people who would otherwise have been priced out of the system on account of their inability to pay the fees. 

What is particularly striking about UNISON is the lengths to which the Supreme Court was prepared to go in examining and ruling upon the consequences for individuals of the imposition of fees. Among the things that the Court took account of were ‘a dramatic and persistent fall in the number of claims' brought in Employment Tribunals following the introduction of fees, and the very limited nature of the regime for reducing or waiving fees for those least able to pay. The Court looked in detail at the assumptions concerning necessary family expenditure that had underpinned the income levels at which the Lord Chancellor deemed people capable of affording the fees. The Court observed that those assumptions presupposed that people should be expected to 'sacrifice ordinary and reasonable expenditure' to be able to afford to take a claim to the Tribunal. That, said Lord Reed, raised a ‘fundamental question’ about ’whether the sacrifice’ of such expenditure ‘can properly be the price of access to one’s rights’. He held that it could not. 

There is, however, only so much that courts can do in this context. Removing an unlawfully imposed requirement to pay tribunal fees was a significant and practical way of enabling the right of access to justice to be exercised in the circumstances of the UNISON case. But in many circumstances, the key issue, as noted above, concerns the availability of representation. The bottom line is that without adequate publicly funded representation, many people will simply have no way of exercising their right of access to justice — or of vindicating the other legal rights that they seek to advance through their reliance on the justice system. And the regrettable truth is that the current system of publicly funded representation is highly inadequate, as the House of Commons Justice Committee made clear in a report published in 2021. The chronic underfunding of criminal defence work, which underpins the ongoing industrial action by Criminal Bar Association, is just one example of a much wider problem. For many people, any form of litigation is an unrealistic prospect, so high are the costs involved and so limited are the circumstances in which public funding is available. 

We are left, then, with a significant gap between legal principle and practical reality. It is all well and good — and it is important and right — that courts should guard the legal principle of access to justice as jealously as they do. But contributions of that nature are merely a necessary, not a sufficient, condition for access to justice in a meaningful sense. If access to justice is to be a practically exercisable legal right, constitutional principle and financial provision must march hand in hand. This does not mean that the courts’ approach to access to justice is a failure: their safeguarding of it from a legal and constitutional perspective is essential, particularly in circumstances in which the Government appears increasingly allergic to all, including legal, scrutiny. Rather, the failure is primarily a political one — a failure that arises from years, indeed decades, of neglect of the level and scale of publicly funded representation that is needed to sustain a system that puts the legal principle of access to justice into practice. 

It is, of course, easy to blame politicians for this chronic failure — and politicians must bear their share of responsibility. But we should not lose sight of a wider point. In public discourse about government spending, the justice system — which, properly understood, must include publicly funded representation that enables access for all to that system — often merits barely a mention. That is perhaps understandable when other crucial public services are also under enormous strain. The prospect of ambulances queuing outside hospital emergency departments that are full to bursting is profoundly concerning. Nevertheless, we should not, in such circumstances, be lulled into thinking that access to justice merely falls into the ‘nice to have’ category. Rather, it is a prerequisite of the sort of effective justice system — which means nothing if access to justice is the preserve only of a privileged elite — that is essential to any well-functioning, civilised, democratic society. 

Mark Elliott is Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine’s College, Cambridge. 

[The CULS Pro Bono Team are absolutely delighted that Professor Mark Elliott has contributed this article, Access to Justice: Legal Principle and Practical Reality, to our blog the Pro Bono Publico. We extend our thanks and gratitude to Professor Elliott for his fantastic writing and support.]