Civil legal aid as a constitutional imperative: A response to Lord Sumption

Having prefaced his tenure as a Supreme Court Justice with a controversial lecture that (as Sir Stephen Sedley put it) he used “to reprove the judiciary which he was about to join for failing to keep out of the political arena”, the end of Lord Sumption’s judicial career is now marked by an address that is no less tendentious. Giving the keynote speech to the 2018 Annual Bar and Young Bar Conference in London ahead of his impending retirement, Lord Sumption broached the question of legal aid. In doing so, he drew a surprising and questionable distinction between criminal and civil legal aid, and (it is argued) fell into serious error by failing to acknowledge that the provision of civil legal aid is, first and foremost, a constitutional issue.

At the beginning of the relevant section of his lecture, Lord Sumption noted that “legal aid cuts have fundamentally changed the nature of practice in every area where the clients are too poor to do without it”. He went on to observe that: “That includes most crime and family work, two fields in which litigation is hardly ever optional.” Lord Sumption then drew a distinction between two categories of Government spending. “There are,” he said, “some heads of government expenditure which are discretionary. Governments decide how much money is available and cut their suit according to their cloth.” That category fell to be contrasted with a second: “There are [other heads of expenditure] which are fundamental to the whole purpose of government, and have to be paid for whatever the costs.”

Having drawn that distinction, Lord Sumption went on to consider where criminal and civil legal aid sit in relation to it. As far as criminal legal aid — and the criminal justice system in general — is concerned, Lord Sumption was in no doubt about its fundamentality:

The maintenance of a functioning system of justice is not discretionary. It is fundamental to the existence of the state and to our existence as a civil society. … [T]hat means a functioning system of criminal legal aid; enough judges of the right calibre to do the work without undue delay or haste; an effective police force; and a humane prison service to receive the unusually large number of people whom we sentence to be locked up. A court system which leaves criminal defendants to face the state’s prosecutors with no, or no adequate, representation, is not a functioning court system. A court system which leaves defendants to foot the bill for their defence when the state has failed to prove its case against them, is not a functioning court system.

However, a sharply different analysis was advanced so far as civil legal aid is concerned. “[O]ther parts of the justice budget are discretionary”, including “much (but not all) of civil legal aid”. The furthest Lord Sumption was prepared to go was a recognition that “[s]upporting the cost of civil litigation may be” — not is, but may be — “desirable in cases where people are too poor to fund it themselves”. But even then it had to be recognised, said Lord Sumption, that civil legal aid “is not fundamental in the way that criminal legal aid is fundamental.” Rather, “[h]owever desirable” it might be, civil legal aid “has to compete with all the other calls on public funds: health, education, defence, social security and so on”.

It is important to be clear about the type of argument that Lord Sumption is making here. Some of what he said shortly after the passages quoted above might be taken to suggest that he was merely offering a set of empirical observations about how civil legal aid is perceived by the public and (thus) by Governments intent on courting popularity. For instance, he says that there is “a trade-off between the cost of the civil justice system and other kinds of government expenditure which are at least as important in the public’s eyes”, and that there “have never been any votes in having a fair and properly functioning court system”. If Lord Sumption intended to go no further than pointing out, by way of observation, that civil legal aid does not fare well when politicians decide on spending priorities, then it would be hard to object to his analysis. It is plain, however, that Lord Sumption’s argument goes much further than this. In particular, it goes beyond empirical observation and amounts to a normative argument. Criminal legal aid falls into the category of matters that are “fundamental to the existence of the state and to our existence as a civil society”. Civil legal aid, according to Lord Sumption, does not.

It is surprising and disappointing to find a Supreme Court Justice advancing such an argument. Disappointing because there are powerful normative counterarguments, rooted in considerations of access to justice and the rule of law, with which Lord Sumption simply does not engage. And surprising because the Supreme Court itself, in a compelling judgment issued only last year, clearly recognised that financial inhibitions upon access to courts and tribunals raises fundamental rule of law concerns. In R (Unison) v Lord Chancellor [2017] UKSC 51, a seven-member Supreme Court bench — of which Lord Sumption was not a member — unanimously held that the Lord Chancellor had acted unlawfully by using a generally worded statutory power to introduce fees for bringing claims in Employment Tribunals. The effect — as Lord Reed put it in his leading judgment — had been “a dramatic and persistent fall in the number of claims”, owing to the fact that some potential claimants could not afford to initiate proceedings without “sacrific[ing] ordinary and reasonable expenditure”.

The Court made it abundantly clear that the lawfulness of the fees fell to be considered through the lens of the rule of law. Among the many “[i]ndications of a lack of understanding” of the importance of the rule of law that the Court had discerned on the part of the Government, one of the most egregious misconceptions was “the assumption that the administration of justice is merely a public service like any other”. This view, it will immediately be noted, sits in tension with Lord Sumption’s suggestion that the funding of civil legal aid is to be viewed as something that “has to compete with all the other calls on public funds”, including the funding of public services such as health and education.

The Court in Unison then went on to restate a series of elementary but fundamental propositions concerning the rule of law and access to justice. “At the heart of the concept of the rule of law,” wrote Lord Reed, “is the idea that society is governed by law.” This required that Parliament “make laws for society in this country”, and that there are “[d]emocratic procedures … in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them”. But — crucially — this was not enough on its own. The rule of law also required the existence courts that can “ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced”.

Having established these basic propositions, the Court turned to the particular question of access to justice. It observed that in order for courts to fulfil their essential constitutional role in an effective and meaningful way, “people must in principle have unimpeded access to them”. In other words, the mere existence of independent courts is necessary if the rule of law is to be upheld, but it is not sufficient; people must also have meaningful access to those courts. Thus, in a particularly pointed passage, the Court said: “Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.” It followed that “courts do not merely provide a public service like any other”.

The Supreme Court in Unison was concerned with the imposition of fees in relation to non-criminal litigation in tribunals. It was not concerned with civil legal aid. But the relevance of the Court’s observations in Unison to civil legal aid are plain. It is sometimes said that the constitutional right of access to courts is as close as the UK’s unwritten constitution comes to a fundamental, in the sense of immovable, right. Certainly the courts’ robust jurisprudence on ouster provisions might be taken to suggest that. But, for reasons that Unison makes clear, such jurisprudence is largely worthless if access to justice can readily be denied through indirect financial means, even if it cannot easily be denied via the sort of full-frontal assault that ouster clauses constitute.

By way of conclusion, another judicial lecture — this time by Lord Neuberger — may be cited. Speaking to the Australian Bar Association’s Biennial Conference in 2017, shortly before stepping down as President of the UK Supreme Court, Lord Neuberger addressed the issue of civil legal aid. His analysis was strikingly different from that offered by Lord Sumption in his recent speech. Lord Neuberger observed that “the question whether the government should make large amounts of money available to enable ordinary people to get access to justice may depend on one’s view of the argument that access to justice is a special case when it comes to government responsibility”. Lord Neuberger went on to make plain his stance on that question:

[T]he provision of legal aid is a necessary part of access to justice, which in turn is a fundamental aspect of the rule of law. Another way of putting the point is that the two fundamental functions of any government are the defence of the realm and the maintenance of the rule of law. Historically, these were the only two functions of government and even today, while social security, health and education may attract more attention and more money, they would be of little value if the government failed to defend the realm or to maintain the rule of law.

Lord Neuberger’s view that the availability of civil legal aid is a rule of law issue is extremely difficult to dispute. That is not to suggest that characterising the matter in that way yields straightforward, clear-cut answers to difficult questions of degree about (for instance) the appropriateness of different levels of funding. But recognising that the existence, scope and generosity of a civil legal aid scheme engages fundamental rule of law questions is essential if the debate is to be framed appropriately. Viewed thus, a civil legal aid scheme that (where appropriate) facilitates litigation by the impecunious is not merely something that “may” — or, by implication, may not — “be desirable”. Instead, it is nothing less than a constitutional imperative. If the rule of law is to mean something in reality as distinct from theory, it is insufficient that people are able to access courts in principle; they must also, and crucially, be able to access courts in practice.