I would like to share with you our thinking about how in a modern society we can do better at improving Access to Justice and Access to Dispute Resolution. I will set out our thinking currently in the Department to what that might mean in terms of the process of change over the next 5-10 years.
The Department for Constitutional Affairs was a new Department that was formed almost exactly a year ago. What is different between it and the previous Lord Chancellor's Department is the focus of the Department on the public as its central perspective. Last year the Secretary of State for Constitutional Affairs wrote a manifesto which set out what it was that the Department was trying to achieve. The central idea of that manifesto was that the purpose of the Department was to focus on the needs of the public, rather than simply on the maintenance of the institution apparatus of the legal system. In other words the focus of our job is the public and their needs and how to help them get better resolution for them.
What does that mean in practice and what is new about it? I think it is a fundamental shift. The challenge politically is to identify what matters most to the public in terms of the problems that they face in their lives and then to look at how we can adapt the systems of support, subsidy and intervention that the state provides to get better resolution for those problems. At one level, of course, that's what the Courts system and legal aid already does. It provides for and subsidises people with problems to give and get dispute resolution, and in many ways we have much to be proud of in the way that it does that. But the challenge is to go much, much further than the traditional perspective has been.
To make a reality of a manifesto that sets the central focuses and needs of the public, we had to develop a work programme to think how we were going to do that. That work programme was our Consumer Strategy Programme, of which I had political leadership. We wanted to look afresh at what the needs of the public were and think what that might tell us about how we needed to change our focus, our approaches and the services that we delivered and how we used the limited resources that the state had. We identified four initial topics for study: debt, relationship breakdown between partners, community justice centres - with issues around access to criminal justice and in localities - and fourthly domestic violence.
There was no great magic in those four but they were issues that effected a large number of people. In looking at these topics, we weren't going to people and saying 'how have you found the court system itself?' Instead, we were asking for information and perspectives on the problems they experienced, to give their perspective on how the system had worked, or hadn't worked, for them and what they would have preferred in terms of access to alternative ways of addressing the problems they had. We did that through a variety of means, we had a whole host of focus groups where people would come together for a half-day and talk about issues. We also did it by interviewing several thousand people and asked them about their experiences of problems with the justice system. This work programme took about 7 months, culminating in about April of this year.
So, what did we find and what did we find that was different as a consequence? What did it mean in terms of crafting a new strategy for Access to Justice? Well, the first, and probably the most important issue, was the scale of the problems in society. By judicial problems I mean problems on which the justice system technically ought to be able to have the capacity to have some impact. We found that 56% of the population that we surveyed had had a significant justicible problem in the last 3 years. That is a large number if you think about it - more than half the population had had a significant problem that the justice system should be able to address in the last 3 years. This built on work done on it by Hazel Genn "Pathways to Justice". What is striking is the scale of those problems. We tested whether these were minor issues or were they issues that really mattered and used tests such as 'would these issues keep you awake at night or not?' So these were more than just a minor irritation.
The second finding was that people find the prospect of engagements with the justice system extremely daunting. Most people, when they were asked for their views about access to the justice system, were very apprehensive about getting involved in the justice system at all because they thought it would be costly, risky, intimidating, uncertain - all the sort of things you might expect. That isn't to rubbish our justice system, just to say that this is the public perception of how they feel about access to the justice system.
When we then asked people who had experienced the justice system what their actual experience had been it was slightly shocking because they had said it had been worse than they had expected! So there is a picture of a large number of justicible events, a public feeling of apprehension about them and those who did engage with the system feeling not very comfortable about their experiences as a consequence. The other thing that we found when we asked people, was the problems they had took a long time to resolve, 8 months on average in some cases, with some relationship breakdown cases or health or injury cases at work taking over a year. So, there are significant problems and a large number take a long time. We also tried to track the costs, and this is quite a difficult subject to get a fix on. What was the cost socially or economically as a consequence of these judicial problems that people had? The costs were remarkably high, quite a large number taking quite a lot of days off work to try to deal with these issues one way or another.
The last thing we asked people about was their knowledge of awareness of access to advice and information about their problems and how they go about doing so. With two exceptions there was very limited understanding about how to get access to the information and advice. People came up with what you expected to them to do. There are two obvious sources of advice: the CAB and solicitors. They said that the CAB have a "good reputation but you could never get in because they are always full and the phones are off the hook, and you have to wait for too long to get an appointment." They were anxious about the cost of lawyers and solicitors and about whether it was for them or not.
So what do we think about the future? The first point is that demand for solutions to justicible problems is likely to continue and, if anything, increase. Let me give you a couple of instances. If you think about relationship breakdown, all the trends show that about 4 out of 10 marriages will end in divorce and even a higher number of cohabitation relationships will end. The trend of partnering and re-partnering creates problems in terms of the capacity of the two individuals not just to have a civilised ending and to share out the assets and responsibilities, but also above all have a responsible caring for those children of those humans.
Second, debt and personal debt is increasing. Unsecured household debt has doubled and there are 2 million people in England who spend half their income servicing debt. So debt problems and engagement of debt with justicible problems both with creditors and debtors this is unfortunately a growth area. Then there is a whole range of other problems around personal injury or employment disputes or disputes with the state. In part this is a healthy sign partly where society is given more rights and people are more aware of their potential to be able to enforce their rights. But if in practice they haven't got the capacity to enforce those rights, they do not hold a great deal of value.
So, I have painted a picture of increase in judicial problems and of the current way in which the state helps the citizen to address those justicible problems that looks as if it is creaking. All this is a description of civil issues, including family issues, and administrative justice. In Government, an enormous amount of effort is going into improving the criminal justice system, although I won't speak about this now.
In summary of our current justice system in this area:- consumers are poorly informed about their rights and responsibilities. They are bewildered about where to go for information, advice and resolution. Secondly, and this is important, that the system of dispute resolution, the mechanisms that the state and society provides in these disputes, focus on reaching court or tribunal for a successful outcome. Put crudely, the system is still essential if you have a justicible problem, you need a lawyer and you need to go into court to sort out that problem. In other words, the focus of the state and its system has essentially been on courts and tribunals as ways in which you resolve those disputes.
Thirdly, the legal system as a consequence can be extremely expensive, adversarial and stressful - expensive to litigants or expensive for the state and the rest of society. I don't in any way want to portray a crude picture: this is not anti court, this is not anti lawyers. Any civilised society is going to need a foundation of a high quality court system and high quality lawyers and judges to deal with disputes ultimately. But the argumentation is essentially that the proportion of the justicible disputes that are being resolved effectively rely too heavily on a court based adversarial system that looks as if it is not adequately fit for purpose. Harry Woolf argued the same in 1996.
So what does that then say that we need to do? The first point I would like to make is that we are developing the concept of proportionate dispute resolution - it's one of those ghastly slogans that policy analysts construct. By proportionate dispute resolution (PDR) we really mean to try to find mechanisms for helping the system resolve the disputes that are proportionate to the risks and costs that they are carrying or feel they can carry. To put it another way, you don't want to have a highly costly specialist adversarial system dealing with issues that could be dealt with more quickly, simply and cheaply by means that are good enough for the disputees. There are three characteristics that we would think about for a statutory PDR.
The first would be dispute avoidance or, failing that, early resolution. By dispute avoidance if the law and the legal rules are so clear and simple it helps to resolve issues so that people know what the law is and that is what the outcome would be if you went to court, It makes it less likely that people would need to go to court. Clearly the transparency of the system is not an irrelevant objective of policy. Also, early resolution must make common sense. If it is possible to get the people who are in dispute to get an early resolution that is good enough; it is self evidently better in time and costs.
The second element of the structure of PDR would be to develop alternative dispute resolution systems, alternatives to court based resolution systems. For a number of the areas it is quite apparent that there is a need to develop different ways of dispute resolution which are more fit for purpose. This is happening already to some extent, but there hasn't been a coherent strategy by the state to look at the basic principles of how and where different forms of dispute resolution might better fit certain problems. Let me try and give you an example, and try to make this less abstract. A clear one in my head at present would be the dispute between two parents about contact with their child after their relationship has broken down. It matters that they do resolve that in the interest of the child's welfare. Currently most of the process focuses on one of the parents taking an application to court and then having what is essentially an adversarial hearing to try to get a resolution. The state subsidises this to quite a significant extent. I would argue that this is inherently unfit for purpose. The problem is to try to get a behaviour change in the parents to have a better understanding about what the needs are of their child and have better co-operation, even though they do not love each other any more, around the interest of the child. A court based adversarial system does not do this well. The evidence we got from our consumers and after talking to the judiciary was that the court based adversarial system often worsens that problem rather than eases it. By slugging it out in court, you were not doing much to try to get to the grips of the failure of understanding of the other party or why it was necessary actually to shift behaviour in respect of the child.
The last element of a PDR strategy is trying to identify more cost effective and better-targeted court processes for cases which are better dealt with in court. So let's review the three elements of the PDR strategy. Let me touch briefly - because there is a limit to how much you can cope with this sort of stuff I am sure - let me touch briefly on a number of other elements of it. The evidence we got from listening to the public was that we have to think more seriously in Government about how we get better education, information and advice for the public. We need to aim to make them more capable of resolving their disputes themselves, because it is inconceivable that the state can subsidise everybody to resolve all their disputes. Therefore the sort of skills that many of us have ourselves at dispute resolution, the sort of life skills that we have built up, we want to increase the capacity and proportion of the public who have those skills to resolve disputes themselves. So education, information and advice matter and there isn't a coherent strategy across Government at present as to how we develop education, information and advice. Lots of different Government departments fund projects, but in not a particularly joined up way.
Next, we must consider the range of alternative dispute resolution mechanisms, projects and services elsewhere in the world, that look as if they are more fit for purpose and that we could pilot ourselves. An obvious example would be the use of mediation either separately to court or mediation within the shadow of the court. If through mediation or a conciliation process you can help the parties to converge on a good enough settlement it can increase access to justice. So we have a work stream underway to identify alternative dispute resolution mechanisms. This will take time, but the aim would be that in 5-10 years you could begin to see a significant shift in the proportion of people who are getting a more effective resolution of their problems.
Next the courts themselves and tribunals. Well the obvious point is that they are fundamental to the resolution of some disputes. In some cases, you would want to get more cases into court rather than fewer. An example I could give on that would be if you look at the volume of domestic violence in our society. We estimate that there are about 600,000 incidents a year and 500,000 calls to the police. If you then look at what happens in terms of what the court systems produce at the end of that, there are about 30,000 civil injunctions and 7,000 criminal convictions. These are minute numbers. So you have an enormous contrition between the volume of the problem and what the legal system is producing in response to it. People aren't going to court, or if they are, it isn't working for a variety of reasons. It is not for want of throwing a lot of money at it: we are probably spending one billion a year on the formal justice system on domestic violence. It is not delivering a lot of value to women experiencing domestic violence. In this instance we want to find ways to support more victims to use the remedies the law can offer.
Therefore, in some cases our strategy will be to get stuff out of court because this is not the best place for resolution. In others, like domestic violence, it will be to get more into court, where this is fit for purpose.
The same would be true of tribunals. More people go to tribunals than go to courts but tribunals are fairly clunky, standard and rigid in form. There are more creative ways than tribunals to resolve disputes as we have seen from some of the private sector models.
All this has relevance for the two really big ways in which the Department for Constitutional Affairs spends its money, about £4 billion. It spends £2 billion on Legal Aid and about £2 billion on the Court Service. The state is currently spending on Legal Aid predominately funding lawyers to argue issues in court and on a dispute resolution mechanism, which is largely the courts. Now we will still continue to subsidise lawyers and the court system. However, I question whether we have the balance of that expenditure right, or whether in fact we should be looking to get more of the funding into alternative forms of dispute resolution which may involve lawyers and others acting outside the courts. We will be looking at some of those issues in the Fundamental Legal Aid Review that we are beginning. This asks fundamental questions such as if the State is putting in £2billion of subsidy onto Legal Aid who is it we should be subsidising and how can we make most use of that subsidy? Are there better ways for the State to help people resolve these issues?
A further review, called the Clementi Review, is looking at the regulatory framework for legal services. We want to get all of these programmes joined-up because the way we use the limited money through Legal Aid and The Regulatory Framework should have policy coherence with what we think would develop best value and best utility for the public. What will give more value to the public and in particular those who the State owes greatest obligation to help resolve their problems?
This summer, we will be publishing a sequence of papers - the analysis and the consumer strategy and subsequently the 5-year strategy. I have really given you a flavour of the 5-year strategy in what I have been talking about. It is effectively that the consumer strategy was collective, fundamental and restructured thinking that I have sought in my inarticulate way to set out hence the 5-year strategy for the Department. It is probably really a 5-10 year strategy as these are really, really big changes that we are talking about. However, I hope we will be setting this out for discussion and debate before too long. It is very interesting work, it's also work in which we have involved the judiciary and the professions. It starts really from the perspective that it is the public we are here to make these interventions for and how to help the public to get better resolution to their problems. Finally, it is about needing to change the system to give them better utility, better resolution for the issues that matter to them.
Thank you all very much