Justice in an Age of Austerity – Nigel Duncan

Nigel Duncan, Professor of Legal Education (The City Law School)

Nigel Duncan, Professor of Legal Education (The City Law School)

I attended the ‘Justice’ Tom Sargant Memorial Lecture last night, given by Lord Neuberger. He challenged those who felt secure in the rule of law, comparing them with Francis Fukuyama in his End of History and the 19th century physicists who, before Einstein, thought that they understood it all. In his view, although justice in the UK is in pretty good shape, access to it is not.

His critique was wide-ranging. The welter of legislation, brought in too quickly to be well thought through. Prolix judgments (he admitted to sometimes losing the will to live while reading judgments, the worst experiences being when they were his own) where, he argued, controversially, that to keep the law simple judges might sometimes have to come to decisions which seemed harsh in the instant case. I hope that he is wrong about that. There should be scope for judgments that state simple principles while then carefully indicating how the specific facts lead to those principles being applied in a particular way. I confess, though, that it is he who has the experience in trying to do that.

The main focus of his lecture was access to justice and he concentrated on the civil justice system. He criticized the declining availability of legal advice. He spoke positively of the Woolf and Jackson reforms, but cautioned against too much enthusiasm for ADR. It is only good if it works in the instant case. A failed mediation is simply another waste of time and expense.

His attack on the cost of legal advice and representation was widespread, but tempered by a reminder of the low earnings of most lawyers relying on public funding. He particularly criticised the hourly rate, the centrality of which he described as ‘malign’. Its ‘meretricious precision’ confuses cost with value and encourages inefficiency. However, he also suggested that low-value cases could be satisfactorily resolved by ‘quick and dirty’ justice, limiting, for example, the costly procedures of disclosure and opportunities for cross-examination. He singled out the complex and unwieldy regulatory system of the legal professions as contributing to the cost of providing legal services.

Finally I should mention two warnings that address major political issues of the day.

• He warned that successive Governments’ attack on the public funding of legal services could lead to a rank denial of justice and inefficiencies causing cost and delays in the courts as litigants in person struggled to exercise their rights.

• He warned against current measure to restrict judicial review. Although weeding out weak cases was valuable, “[t]he courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies.” He reminded us that the proposals for ‘reform’ came from the very body subject to the courts’ scrutiny.

That’s about as far as a serving President of the Supreme Court can go. The full text of the lecture can be read online.

It was good to see some of our Bar students present. I hope you found it as stimulating as I did. Justice is a great organization and you should all consider joining its Student Human Rights Network.

Nigel Duncan is Professor of Legal Education at The City Law School and Course Director of the LLM in Professional Legal Skills. The majority of his teaching is on the BPTC and LLM in Criminal Litigation.

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