Lords of little they survey

The investigations of Lord Mackay and Lord Woolf will fail unless they join forces, says Roger Smith

This year will see the publication of consultative papers on legal aid and civil justice by Lords Mackay and Woolf respectively. Both will be promoted as setting the course for the next millennium. Alas, both are unlikely to move beyond the cultu re of short-termism in which legal policy is historically steeped.

On average, a major report on the future of civil justice has been produced every 29 months over the past century and a half. The recent history of legal aid is much the same. In the past eight years, civil legal aid has been considered by an efficiency scutiny, a White Paper, a Green Paper, an Act of Parliament, a departmental and now a fundamental review.

The Lord Chancellor's pressing need is to get the Treasury's rottweilers off his lawn. A deal is in the making. The civil legal aid budget will be offered as a sacrifice in return for leaving criminal legal aid alone.

Lord Woolf is a more independent agent than the Lord Chancellor. However, precedent suggests that he too is vulnerable to being trapped in too limited a context.

The basic recommendation of the civil justice review was that cases could be safely devolved down the system, easing delays. Despite a number of measures to achieve this, the average High Court case now takes six months longer to come to court than it did in 1986. No statistics are kept on waiting times in the county court. Practitioners report that it is swamped.

The systemic nature of the problems of our justice system is indicated by the fact that this country is not alone in facing crisis. The governments of Australia and Quebec have both recently funded reviews on access to justice, while Ontario has appointed a civil justice review. US legislation requires each federal court to experiment with its procedures and to encourage alternative dispute resolution; the Netherlands, Ontario, New South Wales and Victoria have faced crises in the provision of civil legal aid that led to cuts.

Such a general experience suggests there might be some benefit in sharing research and discussing approaches. The tight timetables of Lord Mackay and Lord Woolf suggest they have little opportunity for this. In any event, the Lord Chancellor's Departmen

t has little experience in conducting or commissioning research. Traditionally, it has paddled up its backwater of government with a mixture of prejudice and expediency, now cruelly exposed as the departmental budget rockets.

Less short-termism might suggest a redefinition of goals. The job originally given to Lord Woolf was implementation of a recommendation of the civil justice review that the procedures for county and high courts should be harmonised, bringing together what are known as the "white" and "green" books.

This is not, however, a self-evident good. North American theory is moving to the notion of "appropriate dispute resolution", - that different types of disputes should be decided in different ways. There is much talk of the "multi-door courthouse", in w

h ich a choice of rules may actually be desirable.

In any event, the civil justice review began with something far more radical than rule harmonisation. It originally suggested that the two separate civil courts should be combined, resulting in much more flexibility in the allocation of cases and judges.This was killed off by the judges. Research might discover that the very foundation of Lord Woolf's investigation is, therefore, irretrievably flawed.

This sort of fudging will no longer do. Increasing swathes of Middle England are excluded from obtaining justice, too rich for legal aid and too poor to pay lawyers. Capping part of the legal aid budget will not begin to answer their problems, nor, poss

i bly, those of the Treasury. Nor will a few more procedural judges help them much.

The only way forward is a package of measures that will cut across traditional boundaries. As a result, the two reviews need to be combined.

Lord Woolf himself has recognised the entwined nature of the problems with his suggestion that savings on the costs of court could be used to fund increases in legal aid. The civil justice review suggests that this would not happen.

Only an integrated approach that subjugates today's pressing imperatives to the demands of a long-term strategy has a hope of achieving increased access to justice at a reasonable cost to the government. Alas, this is exactly what we will not get.

Roger Smith is director of the Legal Action Group.