Friday, January 29, 2010

How Is Access to Essential Services Guaranteed?

(Thanks to Daily Telegraph)

Since my visit to CES in Coimbra, Portugal recently I've been thinking about the changing landscape of access to justice. For me the formal state system of courts has assumed a much less dominant role in the last 10 to 15 years. And even though legal aid in the UK has just enjoyed its 60th birthday, it only applies to criminal cases and a few types of civil matters. And government is seeking to reduce legal aid expenditure in the future.

So what has happened to the landscape? How has it changed? And has it improved or deteriorated?

Two events have developed my thinking. One is encountering the research project on civil justice systems and access to justice at Oxford run by my colleague Dr Magdalena Tulibacka. The other is attending a recent seminar on the delivery of essential services held by the Centre for Consumers and Essential Services (CCES) at Leicester.

The Oxford group has been mapping non-judicial dispute resolution systems. Their list has over 100 institutions involved in this activity, from large organizations such as the Financial Services Ombudsman to small ones like the Double Glazing and Conservatory Ombudsman. I recommend their paper Civil Justice in England and Wales--Beyond the Courts. This clearly shows that courts are minority institutions in access to justice today.

The CCES seminar was on the delivery of essential services and human rights. The lead discussion paper What are the effects of changes in the delivery of essential services--how do providers relate to consumers? argued that we are living in a radically altered landscape. Communication between consumers and providers had moved away from face to face interaction to electronic communication, either through the internet or with call centres in places like India.

Tony Herbert, social policy officer for the Citizens Advice Bureaux (CABs), demonstrated that much of the work done by CABs was navigating the complexities of life which mainly mean communicating with these remote centres with all the accompanying problems of miscommunication that inevitably arise. Language difficulties, hearing impairments, limited or no access to the internet or no understanding of it, even being able to express a problem cause difficulties for many people. This is especially so when providers work off inflexible scripts.

Andrew Kaye of the Royal National Institute for the Blind put forward the idea that there are gradations of essentialism, that essential services aren't just the basic utilities but can include all forms of communication such as computers and television or radio.

Some of the providers explained that it wasn't always easy to discern if there was a problem with a customer--blind, hard of hearing don't necessarily come across the phone line.

The result is that access to justice has come to mean something more than its original purpose. It now incorporates the difficulties of coping with modern life some of which are included within our human rights.

The question is what role does the state now have in access to justice? The courts still exist and are busy, lawyers are earning fees, but the vast majority of "trouble cases" are not resolved within the court system. It is too remote, slow and expensive. The informal modes of dispute resolution now predominate.

To an extent the state is content with this. Instead of having to play a direct role it can assume the guise of regulator of these different institutions. It has not yet done so with many of them and it may not. But we are going to have to teach our students how to find their way around these new systems. And that's presuming we know our way around.
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