Chief Justice warns on ‘dangerous disconnect’ between law and public

The law could become ‘dangerously disconnected’ from the public it is meant to serve, the Chief Justice warned today (22 March).

Some believe that courts exist to determine disputes, and that litigation is not an inherently desirable activity, he said.

Speaking at the launch of the Chief Justice’s Access to Justice Report in the Ballymun Community Law Centre this afternoon, Chief Justice Donal O’Donnell said that the view still exists that it is not the business of courts to be concerned about access to justice.

Serious step

However, there is a difference between resorting to court as a serious step not lightly taken, and access to justice being difficult, if not impossible, for ordinary people, he said.

 

While most people in the justice system work hard to ensure a fair hearing and a fair result, that perception may not be shared elsewhere, whether because of lack of knowledge or a justifiable frustration, which can easily become cynicism, he said.

“If people cannot have disputes which are important to them resolved definitively by an independent court, then the law becomes dangerously disconnected from the public it is meant to serve,” the Chief Justice said.

This risks a ‘cavernous discrepancy’ opening between what the law says and what the law is understood to do, he said.

“It is difficult to avoid the impression that there is something of a mismatch between the courtroom and the world outside,” he added.

“Disputes in the courtroom do not always reflect the daily life of citizens,” he said.

Fragile democracy

“That's a bad thing in itself. Current events show that the western liberal democratic model is a fragile one which we cannot take for granted,” he commented.

“The existence of an independent court system in which justice is administered without fear or favour, affection or ill-will, is not a luxury or an optional extra,” he added.

Courts, with all their inefficiencies and frustrations, are central to the continued existence of the liberal democratic society, and its values which are under threat today, the Chief Justice said.

He pointed to a growing tendency in United States academic circles, to question the benefit of the adversarial system, which is at the core of the common-law concept of the administration of justice.

Adversarial system

The Chief Justice quoted lawyer John Henry Wigmore who said that the adversarial system and cross examination was the “greatest engine for the discovery of truth known to man”.

“But we now see some of Wigmore's successors questioning the value of the adversarial system at all. And we should not assume that our system is immune from pressures,” he stated.

The Chief Justice acknowledged the work of his predecessor, Mr Justice Frank Clarke, who set up the Access to Justice Working Group.

“I want to acknowledge the hard work that has been done by all participants in the working group from the Law Society, the Bar Council, the Legal Aid Board, and senior members of the judiciary, including Mr Justice McMenamin, who is here today,” he said. 

Chief Justice O’Donnell said that he was very happy to continue to support the initiative, and he acknowledged the generous support of the Law Society, which hosted October’s conference in Blackhall Place and provided technical support.

Clear-eyed realism

The Access to Justice report is a rich resource as well as a signpost to the future, he said, and the conference was a sensible mixture of enthusiasm and clear-eyed realism.

“What comes across in this report is the recognition that the problem of access to justice is a complex and multifactorial one, and there is no single easy answer,” he said.

“In the past it was fashionable to look to the State to provide answers and funding, almost without regard to cost, or the competing demands in society,” he said.

It's now better understood that progress involves careful work by those attempting to simplify court procedures, voluntary groups, and private practitioners working sometimes pro bono, and consideration of regulation of third-party funding models for private litigation, the Chief Justice said.

Significant investment

“It's also fair to recognise the significant investment the State has made,” he said, pointing to the Criminal Courts of Justice, and the development of a purpose-built family law facility at Hammond Lane in Dublin.

Investment in the legal system was a legitimate cause for pride, since priority was given to those areas of criminal law and family law where most participants were not in a position to pay for legal services themselves, he added.

“These substantial buildings are a real illustration of the commitment that legal disputes, involving citizens of often limited means, should take place in surroundings that reflect, respect and enhance essential human dignity,” he added.  

“That is both important to acknowledge, and also something to build upon,” he said.

Enhanced access

Expanded access to justice could provide real and positive economic benefits to society, Chief Justice O’Donnell said.

“It must also be the case that enhanced access to justice can strengthen the bonds that hold society together,” he said.

Access to justice is not access to courts, he concluded, it is access to information about legal rights and the law, and the courts system. 

However, it could be difficult to vindicate the right to justice in communities that were deprived of legal practitioners, Gary Lee, managing partner at the Ballymun Community Law Centre said this afternoon at the launch.

Lee said that it would be great to have legal practitioners coming from the local community. Not only would that help normalise the legal system for those from challenged socioeconomic backgrounds, but it would enhance the system.

“Inclusion and diversity should be our bedrock,” he added. “The more diverse our system is, the more inclusive and effective it will be.”

Owned by the people

The law should not be remote,” Gary Lee said. “The law should be owned by the people, and used by the people.”  

“It’s vitally important, too, that our judiciary is diverse and reflective of the Ireland of today,” he added 

The Ballymun Community Law Centre would struggle to survive without the support of solicitor and barrister colleagues and legal academics, he commented.

“It never ceases to amaze me that the legal professionals who offered their services for free to address social injustice are often the ones that are at the very top,” he said, pointing to Chief Justice Donal O'Donnell’s voluntary service in the past at Northside Community Law Centre.

Oonagh McPhillips (Secretary General at the Department of Justice) told the launch that serving on the Legal Aid Board had taught her a lot about the issues, challenges, and limitations of the current system.

“I know all of us here today share that deep commitment to widening access to justice, removing barriers, and simplifying and improving processes,” she said. 

Transparency and accessibility of information matters a lot in that regard, the secretary general continued.

Much work was underway on family justice strategy, McPhillips concluded.