news comment: Austerity prompts calls for move to inquisitorial system
The charity Justice argues that radical solutions are needed to tackle the crisis in the justice system caused by cuts to legal aid, the advice sector, and the courts and tribunals system. In its report, Delivering Justice in an Age of Austerity, it admits that the more inquisitorial approach it advocates will require investment. LAG fears that the government will need to experience a policy epiphany before it will commit any cash for reforming the civil justice system.
The big idea in the report is to create a system of trained dispute resolution officers (called registrars) to work in the courts and tribunals system. Their role would be to identify the issues in a case and to give advice on the relevant law and procedures. The report’s authors hope that, through active case management, the registrars would use their expertise to: strike out statements of case where appropriate; undertake early neutral evaluation; try to resolve cases using mediation; and, where no other resolution is likely or suitable, refer them to a judge.
In a key passage, the report (quoting Deputy Chief Justice Faulks of the Family Court of Australia in Self-Represented Litigants: Tackling the Challenge, February 2013) points out that ‘there are three things that can be done in relation to self-representation by litigants: one is to get them lawyers, the second is to make them lawyers and the third is to change the system’. It argues that, during times in which legal aid was available, it was a matter of getting people to lawyers, but that, post-LASPO, attempts have been made to increase the public’s knowledge of the law in order to ‘make them lawyers’, a strategy that can only ever be limited. Justice instead advocates a whole system change for non-family cases, with the new registrar posts at the centre of assisting the judiciary, courts and tribunals in adopting a more inquisitorial approach to cases.
Justice also argues for the development of an integrated online and telephone service to provide the public with access to advice and information. The new service, says Justice, would draw on experience from other jurisdictions and play a crucial role in avoiding expensive litigation. The charity recommends that existing services should continue to be funded during the two years it believes it would take to develop such a service.
The report seems to be suggesting a kind of halfway house between the current adversarial system in the UK and the sort of full-blown inquisitorial system that is common in other European countries. Such systems require greater numbers of judges and support staff, of which the new registrars, presumably, would form part.
LAG, however, fears there is an unspoken policy of demand management going on in the civil justice system. Everything from the cutting of scope in civil legal aid to the introduction of fees in employment tribunal cases points to this. For Justice’s ideas to have any chance of adoption there has to be an acknowledgement from the new government that there is a problem. This, LAG believes, is the immediate challenge for access to justice campaigners. Creating the political will to find the necessary cash to pay for any new system would be the next.