Access to justice in Ireland

It is of the utmost importance that the term ‘access to justice’ is not just a buzzword, but is something of substance, argues Matthew Mulrooney

Access to justice can be seen as a fundamental human right, including knowledge and access to the legal system in order to rectify a wrong or to put effect to a right afforded under law.

It has been further described as a pillar of the rule of law through making legal services and the justice system accessible for all. This is a cornerstone of the legal professions.

Arguably, the recent move towards digitisation and the increased use of legal technology in national legal systems has had the (apparent) benefit of increasing transparency in those systems, and assisting to decrease court backlogs. It has also been argued that such digitisation has assisted individuals to better understand the complexity of law.

No silver bullet

However, former Chief Justice Frank Clarke has said that there is no “single solution or silver bullet” to solve barriers to accessing justice in Ireland. Social barriers to justice, in particular, encompass a lack of legal knowledge, lack of trust in the system, and/or poverty.

For example, a common misconception is that legal professionals are of a different social class and therefore cannot represent or understand those from less privileged backgrounds. Simply put, it is believed that the law, and by extension justice, is not for them.

This belief prevents some people from even considering legal recourse as an option in the first place.

While it is largely accepted that digitisation can overcome issues surrounding costs and socio-psychological barriers to justice (including its complexity), there still remains a problem in the lack of consultation between citizen and law-maker when looking to implement these resources – and when there is such consultation, it is often retrospective.

This presents problems, such as the misconception that the only people who are affected negatively by the introduction of such technology are those who are internet deprived, or are unwilling to use it.

This is not the case: the most vulnerable of people have numerous issues far removed from an unwillingness to use technology. Examples can include homelessness, poverty, illiteracy, or mental health problems.

These problems demonstrate the continued need for community law centres, which aid in matters that fall outside of the legal aid services.

Public perception

Recently, a discussion among colleagues arose following public comments underneath Law Society posts on social media. Such comments were reflective of the socio-economic barriers discussed above.

These barriers are further exacerbated by a lack of understanding of the role of the legal practitioner. As a trainee solicitor, I am privileged to be employed by a relatively large corporate law firm.

This stage in my career represents four years of undergraduate studies, one year of professional examinations, two years of office experience and, at the time of writing, I am coming to the end of the Professional Practice Course.

In essence, I am in my fifth year as a member of the legal community – and I still struggle to understand the precise nature of our role in society.

This is because our role as practitioner is ever-evolving and adapting to a changing society and the needs of that society. The modern practitioner can wear multiple hats, jumping from advisor and advocate to therapist and confidant in an instant.

A further divide between the profession and the public arises due to the reactive nature of law, as opposed to it being pre-emptive.

For those in the profession, we realise that this is because it is hard to preempt issues when you cannot see how those issues present in practice. However, for others, this presents as ‘the law’ being outdated, archaic, and even uncaring. This is compounded by the often slow-moving nature of law when it does react.

Although not universal, it is arguable that this issue is reflective of our dealings with lay litigants. This is not necessarily due to a disdain for the non-legal community but, rather, is more generally reflective of an increased workload.

As solicitors, we practise how we were taught. We expect our correspondence in particular language, our affidavits in a certain style, and our proceedings served in a particular manner – in effect, everything a lay litigant does not know how to do, duly frustrating judges, solicitors, barristers, and lowly trainees.

However, it was as an intern, on a Monday morning motions court, that I began to empathise with the lay litigant.

The court was a sea of black robes; then, as a matter was called, one elderly gentleman presented himself to the judge, in opposition to an immaculate, articulate barrister.

Reflecting on this encounter, which lasted no more than three minutes, I empathised with the gentleman, recognising the fear – even intimidation – he must have felt in that courtroom, how inferior he must have felt at that time, and still (when some of us still struggle to find the courage to order a takeaway) stood up and addressed the court.

Effecting change

This discussion serves only to illustrate why these barriers to access to justice exist. Considering this, can we really blame people for falling into a belief that ‘law is not for them’, because, when they do utilise the system, they can find themselves in intimidating situations facing metaphorical giants, thus feeling isolated and alone?

To really effect change, it is of the utmost importance that the term ‘access to justice’ is not just a buzz word, but is something of substance.

For this reason, the work of community law centres is also of the utmost importance – not just for what they do, but also for the relationship of trust they create between the profession and the communities that they serve, overcoming many of the aforementioned barriers to justice.

However, due to the sensitive nature of the work undertaken, and again because they fall outside the scope of legal aid, these centres often find it hard to raise funds.

It was this that inspired a number of trainees to do their part. Change does not always start from the top, but must also start from the bottom.

In August, eight students, training to be solicitors at the Law Society of Ireland, climbed the highest mountain in Africa – Kilimanjaro. Our goal was to raise funds for and awareness of the Ballymun Community Law Centre, which performs incredible work throughout the community to ensure access to justice is available to all who need it.

Matthew Mulrooney is a trainee solicitor at RDJ LLP. He wishes to thank Dr Rónán Kennedy of the University of Galway for reviewing this article.