Access to Justice and Funding of Legal Services (AQA A-Level Law): Revision Notes
Access to Justice and Funding of Legal Services
Introduction
Access to justice and funding of legal services concerns three key elements:
- How litigation is paid for
- Who pays for the litigation
- Whether there are any alternative methods of funding legal advice
This topic examines the financial barriers that exist in the English legal system and how these impact a citizen's ability to access courts and legal representation. Understanding funding mechanisms is essential because financial constraints can prevent individuals from exercising their legal rights, regardless of the merits of their case.
The ability to access justice is not just a theoretical right – it has real practical implications for individuals seeking to resolve disputes, defend themselves, or pursue legal claims. Without adequate funding mechanisms, the right to justice becomes meaningless for many citizens.
The principle of equality before the law
A fundamental principle of the English legal system is that there must be equality before the law. This means that when a case comes before a court, guilt in criminal matters or liability in civil matters should be determined solely on the basis of:
- The facts of the case
- The relevant law applicable to those facts
This determination must be made irrespective of a person's status, wealth, or social position. The principle demands that an inability to pay for legal services must never prevent citizens from bringing an action in court or defending themselves against legal proceedings. Without this principle, the legal system would favour the wealthy and powerful, undermining the rule of law.
The concept of equality before the law ensures that justice should not be a commodity available only to those who can afford it. Every individual, regardless of their financial circumstances, should theoretically have the same access to legal advice, representation, and the courts.
The Core Principle: Justice should be based on the facts and the law, not on a person's wealth or social status. This is the foundation of a fair legal system.
The cost barrier to accessing justice
Despite the principle of equality before the law, the reality is that litigation (the process of taking action, normally in a civil dispute) is an expensive matter. The high costs of legal services create significant barriers to justice.
The affordability problem:
Many citizens cannot afford the high costs associated with hiring lawyers. Legal fees can run into thousands or even tens of thousands of pounds, putting court action beyond the financial reach of ordinary people. This creates a practical barrier that contradicts the theoretical principle of equal access to justice.
The Reality of Legal Costs: Even a straightforward civil case can cost £10,000-£20,000 in legal fees. For complex litigation, costs can easily exceed £100,000. These figures are simply unaffordable for the vast majority of citizens, effectively denying them access to the courts.
The inequality of representation:
Even when citizens can afford to go to court, they often cannot afford the best legal representation. For example, Queen's Counsel (senior barristers with extensive experience and expertise) command premium fees because of their reputation and skill. This creates a two-tier system where wealthier litigants can secure superior representation, potentially giving them an advantage in court proceedings.
The Two-Tier Justice System: The cost barrier creates a significant problem – not only do many people lack access to courts entirely, but even those who can access the system may face opponents with far superior legal representation. This fundamentally undermines the principle of equality before the law.
The cost barrier is particularly problematic in civil cases, where individuals may have legitimate claims but cannot pursue them due to financial constraints. Similarly, defendants may be unable to properly defend themselves, leading to unjust outcomes.
Important distinction
Common Mistake to Avoid:
Do not confuse access to justice with alternative dispute resolution (ADR).
Access to justice is specifically about financial access to the courts and legal representation. It is not about finding alternative ways to settle disputes outside the court system, which is the function of ADR mechanisms such as mediation and arbitration.
These are two separate concepts that address different aspects of the legal system.
Exam guidance
Assessment Information:
This content will be assessed as part of your understanding of the English Legal System. In the exam, you may be required to:
- Explain what is meant by access to justice and funding of legal services
- Discuss the principle of equality before the law and whether it is achieved in practice
- Evaluate the extent to which cost creates barriers to justice
- Consider potential solutions to funding problems (covered in subsequent material)
When answering questions on this topic, ensure you:
- Define key terms such as litigation clearly
- Explain both the theoretical principle and the practical reality
- Use examples to illustrate how cost creates barriers
- Consider both civil and criminal contexts where relevant
Summary
Key Points to Remember:
- Access to justice concerns how legal services are funded, who pays, and what alternatives exist
- Equality before the law means justice should be based on facts and law, not wealth or status
- Litigation is expensive, creating a significant barrier for many citizens
- Even those who can afford to go to court may not afford the best representation
- Access to justice is about financial access to courts, not alternative dispute resolution
- The cost barrier undermines the principle of equality before the law in practice
- Key term: Litigation = the process of taking action, normally in a civil dispute