Sorabji: All previous reviews and reforms have failed
A prominent barrister and academic has put forward plans to create two new institutes – one for civil justice reform and the other for access to justice – to help remove the barriers that prevent 3.5m people each year from getting the legal support they need.
Dr John Sorabji, an associate professor at University College London, said his vision for the institutes would deliver more legal reform than any of the judge-led reviews that have taken place in the last 40 years.
In his new report – Improving civil justice reform – an analysis of major reviews in England and Wales – Dr Sorabji looked at whether the civil justice review (1988), the Woolf review (1996), the Jackson costs review (2009) and the Briggs Review (2015) had improved access to justice.
Despite an “almost continuous cycle of reform since the 1980s”, Dr Sorabji said all four reviews had “failed to identify the root causes of people’s access problems, such as a lack of understanding of their rights or where to access legal help, or a lack of trust in the legal system”.
They focused on reducing the cost and complexity of civil court procedures, rather than improving what Dr Sorabji called “legal literacy”.
They did make some improvements to access to justice, but did not effect “lasting improvement”.
Unmet legal need “remains acute”, the barrister argued. More than a million people take a claim to the civil courts each year, but a further 3.5m with a genuine legal problem that could be dealt with by the civil courts, do not.
“This is because they either do not know that their problem is a legal one, they cannot access legal advice or assistance, or they cannot afford to do so.”
The barriers have been made worse by successive governments. Dr Sorabji, who has been the principal legal adviser to the Lord Chief Justice and the Master of the Rolls, said: “The gap between the criminal and civil systems has grown over the last 20 years because of how the Ministry of Justice has focused on criminal justice.”
According to the World Justice Project, it is harder to get access to civil justice in England and Wales than any other comparable country, and this lack of access has got worse since 2017.
And a review of unmet legal needs carried out by the Legal Services Board showed the problem was felt most acutely by the most vulnerable people in society.
But by creating a Civil Justice Reform Institute and an Access to Justice Institute, both with long-term funding, Dr Sorabji said effective reform could be achieved.
He wrote: “A permanent non-judicial reform body – a Civil Justice Reform Institute – should be established by statute, the remit of which should be oversight of the civil justice system as a whole.
“It should promote reform consistently with an overarching, coherent and holistic strategy. It should be accountable to the government and the judiciary, with an independent chair.
“Its membership should be diverse and drawn widely from all stakeholders in the civil justice system.”
It should be supported by an independent Access to Justice Institute, a research centre that would help create evidence-based reform, with access to data from across the civil justice system.
Dr Sorabji said his vision “explicitly rejects the false belief, which has developed since the 1980s, that the civil justice system is no more than a consumer service”.
He said the new institutes would not be “court-centric”, based just around courts, judgments and enforcement.
“Together, they would provide continuity, expertise and a stakeholder, i.e., user-focus for civil justice reform. Together they would also facilitate the development and delivery of reform, including the economic case for it, that is evidence-based, tested, and delivered as part of an overarching and coherent strategy for improving access to justice.”
This should be understood in “a broad sense” to include: access to preventative justice, i.e. advice and information that helps individuals and businesses order their affairs according to the law and in ways that minimise the potential for legal disputes to arise; access to consensual justice, i.e. consensual resolution of legal disputes, and thereafter access to those processes; and access to adjudicative justice before the civil courts, i.e. legal advice, representation, the civil courts, judgments and enforcement.
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