Guest piece by Eilis Barry, CEO of FLAC: The Bach Commission Report and the right to justice

 Eilis Barry is Chief Executive of FLAC (Free Legal Advice Centres).

The issue of access to justice is topical and critical. FLAC recently welcomed the comments of the Chief Justice setting out his commitment to making access to justice the centrepiece of his tenure and his call for the reform of the civil justice system.

In the UK, the Bach Commission has just published its final report. The Commission was established in 2015 to develop realistic but radical proposals with cross-party appeal for re-establishing the right to justice as a fundamental public entitlement, equivalent to that of education or healthcare. It heard from over 100 individuals and organisations with special expertise in all parts of the justice system.

The primary recommendation of the report is for a new Right To Justice Act.   It recommends

• The codification of existing rights to justice in statute
• A new legal right to legal assistance , without costs people cannot afford
• The basis for this new right to be enforceable through the courts
• A set of guiding principles to sit behind the new right, including the importance of early legal help, pubic legal education and the smooth operation of the system.
• A new independent body called the Justice Commission whose function is to advise on, monitor and enforce the right to justice.

The  report also recommends that the responsibility  and powers of the Justice Commsission should include the requirement/power to

• Prepare statutory guidance with respect to the implementation of the right to justice
• Monitor compliance with the new right to justice , issuing regular reports and recommendations to parliament
• Challenge perceived infringements of the right to justice through the courts
• Intervene in, and assist with, individual court proceedings that will enforce and defend the right to justice in practice. 

The report also calls for reform of legal aid contributions, the means test and a wider scope for legal aid.  It also calls for better pubic legal education in schools and universally accessible advice.

This is a really interesting thought provoking report which brings fresh thinking to this difficult issue.  The concept of a specialised body with dual enforcement and development powers and functions already exists in the EU anti-discrimination sphere. The Race and Gender Equal Treatment Directives require Member States to establish specialised equality bodies to promote equal treatment and with powers to provide assistance to victims of discrimination.  The rationale for such a specialised  body is that reliance on individual litigation was identifed as one of the principal weaknesses of the original Gender Equal Treatment Directive. Victims of discrimination face a range of obstacles when seeking to bring discrimination cases, including financial and emotional costs and there was a recognition of the need to provide better support for individual litigants. These bodies are seen as an innovative valuable addition to enforcement and development in the anti- discrimination arena.

People seeking to assert rights to access to justice and legal aid face similar obstacles. Improvements to access to justice and to legal aid have proved very difficult to achieve through relying upon the individual enforcement model of litigation and challenges to refusal of legal aid. It goes without saying that people seeking to access legal aid  usually are unrepresented. The concept of a statutory body charged with enforcing the right to justice is radical and would certainly help overcome some of the barriers that exist in accessing and enforcing  rights in relation  to legal aid. A Justice Commission would have a unique and powerful contribution to make. This report provides much food for thought for the situation in Ireland.

Click here for the report.