How the justice system can build a fairer society

– Shameem Ahmad, Chief Executive, Public Law Project 

Access to justice is not only a fundamental principle, but also a beautiful one. All the more so in the context of what is known as public law, the rules which govern what the state can and cannot lawfully do. It is in this area that we most often see Davids, individuals, taking on Goliaths, apparatuses of the state. The beauty here derives from Goliath himself ‘arming’ David through the provision of a functioning justice system, which is – at least ideally – open to all. It takes a confident and astute state to understand that it will ultimately govern better if it provides the conditions for a fair fight.

Justice enables a fair and strong society, where the state can be a force for good, supporting people to get on with their lives.

Justice for each, fairness for all

The state contributes daily to the ability of so many to live meaningful and dignified lives through the provision of education, social care, healthcare and much more. The state is also capable of causing or exacerbating great harm, such as when its power is used in an overbearing or an arbitrary manner, or when it unfairly withholds services.

Under a respected, accessible and effective justice system, public law prompts the state to do more good and less harm. This can happen even without any components of that system (such as the courts, the tribunals and ombudsman) being directly engaged, so long as officials expect and are expected to follow public law principles – such as fairness and lawfulness – as they settle complex administrative decisions. Alternatively, it can happen when citizens engage the justice system to review and test particular decisions, or the processes by which they are made. The principles established in those cases can then be applied by decision makers in the future, ideally reducing the need for people to resort to the justice system on the same issues.

This may all sound lofty and remote, so let us take some examples to illustrate the power of accessible justice in our society. ‘Claire’, Public Law Project’s client, a mother to two children, was the victim of prolonged physical, emotional and sexual abuse by her former partner. She was involved in family court proceedings, which required the court to determine the arrangements for the care of their children and what would happen to the family home. She had no income to pay for a lawyer and her only ‘capital’ was locked up as her share in that home, which was jointly owned by her abuser. Although she could not sell this notional asset, the Legal Aid Agency (LAA) decided that it rendered her ineligible for legal aid. This was a bizarre conclusion. By contrast, the Department for Work and Pensions (DWP) deemed her sufficiently destitute for Universal Credit.

The LAA’s decision meant she faced complex legal proceedings against her abuser without any legal support. Claire said, “When I heard his voice it made me physically vomit in court.” The harm that Claire was suffering in her private life was palpably being compounded by the state’s decision to withhold legal support. It was also a critical test case, because at the time it was heard, one in five women suffering domestic violence could not access legal aid because they were similarly deemed to have ‘capital’ even if they could not access it.

Claire challenged the LAA through the application of public law principles and was successful, securing legal aid for herself.[ref]R (GR) v Director of Legal Aid Casework [2020] EWHC 3140 (Admin).[/ref] As a result, she has also ensured that people suffering domestic abuse, most often women, are able to access legal support even when they have such trapped capital. This allows them to navigate the justice system and reach a point where they can live their lives safely. It is often said that order must come before justice, but in this case, we see that justice is needed to enable an orderly existence.

Next, let us take Public Law Project’s client, ‘K’. She was reliant on benefits and has children with complex care needs who needed her support, which ruled out seeking more paid work. The DWP informed K that she had been overpaid her benefits to the tune of £8,600 and so would need to pay it back. K had been overpaid because of the DWP’s own mistake. She had repeatedly checked with the DWP that she was entitled to the money and had been incorrectly reassured that all was fine. Owing that amount is significant for most people. Owing that amount when you are dependent on benefits amid a cost-of-living crisis is devastating. As K put it:

K challenged the DWP’s decision, and the court ruled in her favour.[ref]R (K) v SSWP [2023] EWHC 233 (Admin).[/ref] She did not have to pay the DWP back. Not only that, but the court’s ruling can now be used by others facing similar circumstances.

The welfare system is like an insurance mechanism for every one of us who may end up needing financial support, and so we are all affected when bad decisions undermine the terms of that insurance. As so often happens in these official error overpayments cases, the DWP had made the mistake, but it chose to place the burden on the claimant to sort out the error, thereby reducing the incentive for the department to sort out its flawed systems. K has made a significant contribution in ensuring that responsibility lies where it ought, which has strengthened that safety net for us all.

Without access to functioning justice, Claire would have had to face her abuser and a complex legal system alone. Without access to functioning justice, K’s family would have been left making heavy sacrifices due to someone else’s mistake. In each of these cases, Claire and K took on systems, in frankly incredible circumstances, and changed them for the better. They were able to use the power of the law to forge pathways to a more secure life for themselves and other people. As each of these cases demonstrates, the law is not obstructive to a well-functioning state, but a precondition for it.

Taking justice for granted

We have taken our justice system for granted for too long. Today, we find ourselves at a pass where it is crumbling everywhere, and in places approaching outright collapse. The government’s announcement to put some more money into civil legal aid[ref]Rose, N. 2024. Government announces £20m boost in civil legal aid funding. Legal Futures. Available from: https://www.legalfutures.co.uk/latest-news/government-announces-20m-boost-in-civil-legal-aid-funding.[/ref] is welcomed in and of itself, but it also sends a signal – that, despite challenging financial conditions, it is understood that the neglect of accessible justice cannot continue forever. So that is a start. But given where we are, much more must be done.

Far from learning positively from cases like Claire’s and the socially valuable results of her efforts, we have been leaving ever-more individuals to fight alone, with neither resources nor support. There has been a marked increase in ‘litigants in person’, citizens forced to reckon with the complexities of the justice system without any legal representatives. One chilling statistic from the National Audit Office (NAO) revealed how widespread this untutored piloting of cases has become, even in high-stakes contexts. In the first quarter of 2023, the NAO reported, in 40% of family dispute cases neither the applicant nor the respondent had legal representation.[ref]National Audit Office. 2024. Government’s management of legal aid. Available from: https://www.nao.org.uk/wp-content/uploads/2024/02/governments-management-of-legal-aid.pdf.[/ref] Claire’s case had extreme harm at the heart of it, but even run-of-the-mill family cases will likely have people hurting in some way or another: the pain of divorce; the wrench of separation from a child. It is unconscionable to then compound the misery with the confusion, alienation and lack of voice that can be experienced when there is no one qualified to explain the process, or advise on how to handle it.

Taking another example, a report from Public Law Project[ref]Rourke, D, Cripwell, E, Summers, J, & Hynes, J. 2023. Access to immigration legal aid in 2023: An ocean of unmet need. Public Law Project. Available from: https://plp150.sharepoint.com/sites/LegalAid2/Shared Documents/Resources/Research & policy outputs/Oceans of Unmet Need Report and Background Briefing/231807 Oceans of unmet need v 3_final.[/ref] evidenced, broadly, that for every 16 immigration legal aid referral attempts, only one was successful. Even focusing more narrowly on asylum applicants – that is, by definition, individuals presenting as being in flight from war, violence or persecution – half are unable to access legal aid representation.[ref]Wilding, J. 2022. New Freedom of Information data indicates half of asylum applicants are unable to access legal aid representation. Refugee Law Initiative. Available from: https://rli.blogs.sas.ac.uk/2022/11/04/new-freedom-of-information-data-indicates-half-of-asylum-applicants-are-unable-to-access-legal-aid-representation/.[/ref] Requiring the most marginalised people, not just in our country but in the world, to represent themselves in complex proceedings is absurd and unacceptable in a modern, democratic state. I am proud that people seek refuge in our country. I am ashamed that they are denied the representation to find it here.

Even when the resources for representation are there, a timely day in court cannot be taken for granted these days. Consider crime. Back in November 2023, the Law Society highlighted a year-on-year increase of 9% in outstanding criminal cases in the magistrates’ courts.[ref]The Law Society. 2024. Scant progress in tackling huge court backlogs. Available from: https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/scant-progress-in-tackling-huge-court-backlogs.[/ref] That sort of growth rate soon compounds explosively, spelling unsustainable backlogs. That’s why we get stories like those recently reported on by the BBC: a Manchester sex abuse case where five years of delays led to degraded evidence and witnesses repeatedly answered “I can’t remember”; a grievous bodily harm charge in Shrewsbury where six years of uncertainty and drift has led to a self-described “mental breakdown” in one of the accused; and an unprocessed fraud charge from 2019 that has left a man unable to proceed with a divorce, because absent a verdict, nobody knows his economic position, making it impossible to forge a financial settlement.[ref]Buchanan, M.2024. The struggle for justice in one English town. BBC News. Available from: https://www.bbc.co.uk/news/articles/cmlddjv0eego.[/ref]

Without timely criminal justice, neither victims nor suspects can get on with their lives. What is less appreciated and reported on, however, is that very similar problems arise when the civil justice system is overwhelmed and dogged with delays. Both the overload and those delays are frequently getting worse. Turning back to asylum, for example, as Professor Joe Tomlinson has revealed,[ref]Tomlinson, J. 2024. Why Has There Been a 264% Increase in Asylum Appeals? UK Constitutional Law Association. Available from: https://ukconstitutionallaw.org/2024/06/19/joe-tomlinson-why-has-there-been-a-264-increase-in-asylum-appeals/[/ref] more haste in other parts of the system translates into more stasis in the tribunals. The recent speeding in the administrative processing of asylum applications has led to an astonishing 264% increase in appeal backlogs in the immigration tribunal. This is effectively, as Tomlinson put it, “the reassignment of a substantial part of the Home Office’s asylum backlog to the justice system”.

We see similar challenges in other parts of our tribunal system, whether it be employment, special educational needs, or social security: all areas which affect those suffering the greatest disadvantage. In the Social Security and Child Support Tribunal, for example, open cases increased by 19% to 79,000 in one year.[ref]Ministry of Justice. 2024 Tribunal Statistics Quarterly: January to March 2024. Available from: https://www.gov.uk/government/statistics/tribunals-statistics-quarterly-january-to-march-2024/tribunal-statistics-quarterly-january-to-march-2024#social-security-and-child-support. The open caseload stood at 79,000 at the end of the 2023/24 financial year (March 2024), an increase of 19% compared to the same time the previous year.[/ref] People – often desperately cash-strapped people – waited on average 29 weeks[ref]Ibid. Of those cases disposed of by the SSCS tribunal in January to March 2024, the mean age of a case at disposal was 29 weeks, a 3-week increase compared to the same period in 2023.[/ref] for their appeal to be heard. This routinely delayed the arrival of remedies they had every right to: for those whose appeal was decided at a hearing, 62% were successful.[ref]Ibid. Of the disposals made by the SSCS tribunal, 17,000 (57%) were cleared at hearing, and of these, 62% were overturned in favour of the customer (down from 73% and 63% on the same period in 2023 respectively).[/ref] That is too long to wait for money intended to keep you above the breadline. When families sink below it, there will often be debts and all the social scars that go with it, scars that might have been avoided if they had simply received their money – or failing that, proper redress – in a timely fashion.

Dying in the dark

These are all alarming nuggets of data, but it is currently impossible to paint a more comprehensive statistical picture. There are many ways in which justice is dying in the dark. I commend the Nuffield Foundation-backed work being conducted by the Institute for Fiscal Studies, which seeks to address at least some of the knowledge gaps following the plethora of recent Ministry of Justice (MoJ) policies.[ref]Institute for Fiscal Studies. No date. Transforming justice: the interplay of social change and policy reforms. Available from: https://ifs.org.uk/transforming-justice-interplay-social-change-and-policy-reforms.[/ref] I also commend the MoJ for supporting this project. However, this evidence should have been collected and tracked by government itself. We have been left in a position where we do not even know the full scale of the deterioration of the system.

I am reminded of James Baldwin: “Not everything that is faced can be changed, but nothing can be changed until it is faced.” We need to make serious efforts to track and take comprehensive stock of just how broken the justice has become, as well as ensure evidence-based policymaking is embedded in government to ensure we do not find ourselves in this position again.

What we can say with certainty is that we are at crisis point. Too many people are living in limbo while they wait for their day in court; evidence vital to criminal proceedings is deteriorating over time while large numbers of potentially innocent people are being kept incarcerated on remand for too long; stress and anxiety and sometimes physical health are taking a toll while citizens live without services they need, uncertain of even when they will know for sure what their entitlements are; other parts of the state are left picking up the problems the courts cannot resolve in a timely fashion, and are themselves becoming more strained as a result. This is all leading to public trust in institutions eroding rapidly, which has damaging knock-on effects for people’s faith in the state, and indeed drains their hope in the very possibility of working together to solve collective problems.

With justice denied to the most marginalised, I am left reluctantly asking whether it is any longer right to call this a ‘justice’ system at all. The new Attorney General stated at Public Law Project’s conference last year, “The rule of law is back”. While we breathed a sigh of relief at this sentiment, we had to remind ourselves that this is no time for complacency. We must invest in the justice system and legal aid, both financially and by giving each the esteem they need. Without investment, the justice system is simply another weapon for Goliath to wield against David: yet another channel for reinforcing and entrenching social advantage and its opposite. The rule of law cannot be said to be truly ‘back’ in that context, and it will not be back until there is investment, enabling an effective and accessible legal system that is essential for a fair and strong society.

The last bastion of defence

In recent years in particular, the justice system, and public law itself, has proven its vital role in protecting our democratic constitution. Consider two veins of litigation, in which Public Law Project has had a hand. In the first, the Supreme Court found unanimously that the government had prorogued Parliament illegally. The second was the case concerning the Rwanda policy, which ultimately did stop flights from taking vulnerable refugees to a country where they were at risk of refoulement (being returned to the countries from which they have fled where they faced persecution). In each of these cases, the courts checked the excessive and illegal use of power by the state, protecting the sovereignty of Parliament in our democracy and protecting our human rights regime, respectively.

That the courts did so in highly politically charged environments—the Brexit debates and the perennially charged subject matter of immigration—lends more gravity to the conclusions that they reached. It can truly be said that in these cases the courts acted without fear or favour, because certainly they were tested. Remember the images of judges underneath the headline: “Enemies of the People”. We have also become increasingly inured to the trope of “lefty lawyers”. Such attacks on agents of justice, who are public servants doing their jobs, undermine the rule of law for all.

Ultimately, as well as needing more resources, the justice system requires something else: not support for every decision, but an active restoration of broad respect for its role in society. This would be a priority at any point, but it is an essential investment now. Across the world, the far-right is becoming increasingly adept at gaining power, leading to authoritarian practices including unfair, undemocratic and unlawful state decision-making. In circumstances where political power is taken by individuals with disdain for any rules designed to restrain the mighty, it is the justice system that becomes the last bastion of defence for everyone else. If we, in this country, want to make sure this line of defence will be available to us in the event of authoritarian attacks, we first need to fortify our esteem in justice.

We must not be tempted to look at the rise of the far right globally and dismiss it as something that “couldn’t happen here”—although there are worrying signs of exactly that sort of complacency. We have, as a nation, simply stopped talking about the far-right riots that rocked England and Northern Ireland last summer. That makes it difficult to be confident that we are confronting what is clearly bubbling underneath the mainstream of our society. So, let us recall some of the images from those riots: a mob trying to set fire to a hotel housing asylum seekers; a child chanting “Pakis out” with impunity; a Black man being beaten in central Manchester. These behaviours encapsulate the dangers of a repeat – and the responsibility on us to learn from the horror of that period. Yes, the courts played a powerful part in restoring immediate order in that emergency and bringing some individuals to justice. But the social forces that overflowed then have not gone away. In power, they would have the means to systemically target the marginalised and dissolve the principles that underpin a healthy democracy for us all.

Knowing that, it would be an abrogation of responsibility not to mitigate against this possibility before authoritarians gain the levers of power. Investing deeply in the justice system—rearming David—could be the single, greatest way to enshrine a fairer and stronger society for us all, whatever the future might hold.

The Nuffield Foundation has commissioned this project, but the views expressed are those of the authors and not necessarily the Foundation.