Chief Commissioner speaks at FLAC Access to Justice Conference
Northern Ireland Human Rights Commission Chief Commissioner Les Allamby spoke at the FLAC Access to Justice conference on our litigants in person research with Ulster University.
Below is the full text of the speech.
Speech to FLAC@50 – Access to Justice Conference
I want to start by congratulating FLAC on reaching middle aged maturity. I have a long association going back to the early 1980s from my Law Centre days with both FLAC and the (then) Coolock Law Centre and I want to pay tribute to the pioneers and indefatigable campaigners for social justice in both its early days and more contemporarily including Gerry Whyte, Peter Ward, Iseault O’Malley, (the much missed) Dave Ellis and more recently Saoirse Brady, Michael Farrell, Noeleen Blackwell and of course Eilis Barry who spans both eras.
Anniversaries are a time for reflection alongside congratulations. FLAC has many achievements including key strategic litigation, developing independent community based advice services, promoting pro-bono support, recognising the value of developing policy and legal approaches to tackling social, and economic injustice and highlighting the importance of the work of tribunals as well as courts.
Rather depressingly, many of the issues around access to justice in both parts of the island remain pressing and sharply in focus though ways of tackling them can be more wide-ranging given technological and other developments. Nonetheless, strategic approaches to improving access to justice will require investment which is focussed on tackling unmet legal need where it is most acute. A holistic approach is needed which sees technology as one part of wider deployment of tools and that recognises that the funding of lawyers and legal representation remains essential but, not the sole answer either.
A speaker at a recent Legal Action conference on Legal Aid at 70 illustrated the ‘advice deserts’ in England and Wales for accessing legal services by highlighting Ebbw Vale in South Wales where there are no legal aid lawyers, no Citizens Advice or Law Centre offices while the old magistrates court has been closed and now houses a food bank.
We want to avoid the context in England and Wales where severe cutbacks in scope and funding of legal aid through Legal Aid, Sentencing and Punishment of Offenders (LASPO) became the catalyst for renewed pro-bono and personal litigant support initiatives though that work in England and Wales is important and definitely worth looking at.
Northern Ireland and Scotland both escaped LASPO though downward financial pressures on funding legal advice services through legal aid and voluntary sector have remained a significant trend.
It is against that backdrop, that I want to outline recent research undertaken by the School of Law at Ulster University and the Northern Ireland Human Rights Commission into litigants in person and barriers to legal participation.
In Northern Ireland around 5,000 people every year go into court without legal representation particular so in family courts around private law proceedings, custody, access, financial relief, domestic violence and other issues.
The research had three strands. First, the researchers observed proceedings in the family courts and recorded those observations. Around 180 personal litigants were then interviewed covering their circumstances as to why they were representing themselves, their experience and they then completed a questionnaire on health and well-being and their level of participation in their own cases. Other key stakeholders were also interviewed – solicitors, barristers, family court judges, court service officials. The second strand comprised of offering a legal procedural advice clinic to half the participants. This was conducted by the Commission and those participating were interviewed to ascertain their responses. Third, the Commission provided a human rights analysis as to the circumstances in which a person is entitled to legal representation on human rights grounds under Article 6 of the European Convention on Human Rights.
The findings were interesting. Many personal litigants had surfed in and out of self-representation. Often personal litigants were responding to rather than initiators of litigation. The main reason for going unrepresented was cost (not just actual legal fees but, the uncertainty of knowing how much it will ultimately actually cost and not being able to plan accordingly) but, many chose to represent themselves for other reasons due to dissatisfaction with their legal representation. What the research found was dissatisfaction based not on inadequate legal advice but, rather on relatively poor customer care and a sense of not being a participant in their own cases. The examples included barristers who only became conversant with the issues at the last minute. As a result, people were making opportunity cost decisions on spending money, for example, on replacing a car or furniture, a holiday, essential repairs on their property rather than hiring lawyers. Others, of course, did not like the advice they were getting themselves. Personal litigants also expressed frustration at the lack of support and understanding they faced when trying to navigate the system. In effect, the unrepresented litigant often felt there was a code that lawyers, and judges understood which was inaccessible to them covering everything from procedures, etiquette, expectations, use of language and much more. Interestingly, how a person felt he or she was treated was almost as important as whether the outcome sought was achieved. On the converse side many lawyers and some judges were also frustrated because cases took longer, personal litigants would express their frustration and lawyers and judges felt left with a dilemma of whether to facilitate an unrepresented litigant when the lawyers role was to represent their client or the judges act as the adjudicator. Personal litigants were often seen as at best troublesome and at worst vexatious. Moreover, myth prevailed among some personal litigants including that where a lawyer sought to agree facts in advance or negotiate a settlement that this was a lawyer being Machiavellian or inappropriate rather than perfectly proper seeking a resolution because once proceedings were issues it should result in a full court hearing.
There was a two-way communication gap between lawyers and personal litigants while the courts operate on the premise that both parties will be represented. Interestingly, findings from research in England and Wales suggests that the more educationally qualified personal litigant fared worse because they operated as if they could overcome the barriers and eschewed help. In contrast, the person for whom English was not a first language or who had literacy difficulties were more likely to receive some guidance through the legal maze. Moreover, judges found it easier to manage situations where both parties were unrepresented than when one was unrepresented and the other had a lawyer.
The procedural legal clinic, designed to help an individual navigate the legal process was viewed largely as helpful but, often ‘too little, too late’. The advice was not on the substantive legal issues but, on how to present a case, what written representations could be made in advance, what issues are relevant, expectations of the judge and how to address him or her.
The legal analysis based on Article 6 confirmed that there is no absolute right to legal representation in civil proceedings though it may be required depending on a number of factors including the importance of the issue at stake, the complexity of the case, the ability of the individual to represent him or herself. A key Article 6 case around legal representation is of course, one close to home, namely Airey v Ireland (1979) where the failure to provide legal aid to a woman in separation proceedings was contrary to Article 6 rights to a fair trial. Nonetheless, while human rights arguments can be deployed in some cases there is unlikely to be a with ‘one bound, we are free’ answer to comprehensive legal representation either through human rights cases or public policy developments in the near future.
In essence then, should courts adapt to the needs of personal litigants or the other way round? To date, the latter approach has prevailed.
Personal litigants have a right to participate as effectively as possible in their own cases whether legally represented or otherwise. We cannot turn personal litigants into lawyers, nor should we. Instead, we need to level the playing field as best we can and the research recommendations reflect that, entailing cultural change for everyone involved including personal litigants. The recommendations embrace improved access to independent legal support, for example, court based advise clinics, improved pro-bono assistance and a recognition of the value of more flexible unbundled legal services offering help with drafting or guidance at specific points (rather than comprehensive legal support or none). Better legal information on both court procedures and legal substance, training for lawyers on how to represent clients with personal litigants on the other side and to deal with emotional distressed individuals, and on judge craft for judges in such cases, a Charter of Rights and Responsibilities for all litigants and court actors setting out expectations and regulated through an independent complaints mechanism and the recognition of the role of McKenzie friends alongside ways of assessing their value through codified rules or other forms of regulation.
The research was launched at a conference in which around half the participants were personal litigants including one a former police officer who had been jailed for contempt of court for attempting a citizen’s arrest of a court of appeal judge in the court itself. This created a certain frisson given the opening speaker was the Lord Chief Justice. In practice, the debates were constructive and temperate reflecting the learning that if you allow personal litigants the opportunity to participate meaningfully then, the response is a positive one.
One outcome from the conference was a suggestion that a personal litigant reference group be set up to look at the needs of personal litigants and to feed its views into the recently created shadow Family Justice Board and shadow Civil Justice Council. The reference group has a solicitors, barrister, a senior official from the DoJ and NI Court Service, UU School of Law, the Human Rights Commission, and an independent chair who has private, public and voluntary sector legal experience alongside an equal number of people who have been personal litigants. The personal litigants reflect a variety of backgrounds including a senior civil servant, head of a social enterprise, a self-employed IT consultant (who is now providing pro-bono assistance to the Court Service on how to make its website more user friendly to personal litigants) and a women whose first language is not English and is currently not working.
The first initiatives of the reference group have been to scope what help is available, to conduct a ‘walk through’ of the Laganside Courts for members of the reference group to see how the arrangements, signage and other procedures can be improved and to look at what training is already available for lawyers and others. Future work will almost certainly embrace looking at information and advice needs for personal litigants and how the reference group can feed into operational and policy developments.
So, in conclusion, the research, its outcomes and developments is one piece of a much wider jigsaw puzzle of how to tackle access to justice issues. For too long legal and court reform in Northern Ireland has been driven by an inner circle of both parts of the legal profession, civil servants and judiciary creating an unsurprising inward focus on the needs of lawyers, court officials and judges. The research and its outcome illustrates why we need to adopt a consumer focussed approach in crafting solutions which meet the needs of applicants, lawyers and others, recognises that process as well as outcome is important and as in so many other forms of public provision puts users at the heart of any reform.
17 May 2019
17 May 2019