Access to Justice

Access to justice is a vital human right and abuses of that right are a common subject for pro bono lawyers. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948 (the Declaration) includes several articles that highlight the importance of access to justice.¹ Article 8 of the Declaration states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 10 of the Declaration states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.” Accordingly, barriers to a fair and public hearing or to an effective remedy are contrary to human rights as described in the Declaration.

The principle of access to justice for all under international law was further strengthened on March 23, 1976 when the International Covenant on Civil and Political Rights (the Covenant) entered into force.² Article 2 of the Covenant states that each party to it will “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” The Covenant also includes the obligation to “ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.”

The United Nations Development Program has identified these and other international agreements or declarations as components of a normative framework for access to justice in international law.³ In addition to these agreements and declarations, there are also various regional human rights systems that have a history of recognizing the right to access justice.

English law has recognized the right of equal access to justice since 1495⁴ when Parliament recognized that equality could not exist without reducing the economic barriers to justice faced by poor litigants. On the European Continent, different regions and cities began providing the services of counsel for free during the 15th and 16th centuries⁵, largely inspired by church courts in the Middle Ages that did not charge court costs.⁶ In the 19th century, the right to counsel was enacted through various European national legislatures.

In 1979, the European Court of Human Rights held in Airey v. Ireland⁷, that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (which enshrines the right to a fair trial) sometimes: “compel[s] the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.”⁸

Despite all of these developments, the right to counsel provided through government legal aid is not recognized in all jurisdictions and progress still needs to be made before it can be considered an international law norm. Where it is recognized, a state’s universal access to justice program typically takes the form of the provision of legal aid that assists with the costs associated with legal representation and court costs. In practice, however, legal aid systems can suffer severe limitations due to budgetary constraints. This is evident even in those jurisdictions that are the most supportive of the right of access to justice. The high-profile concerns raised by The Law Society of England and Wales to the proposed cuts to the provision of legal aid in the United Kingdom⁹ are a clear example of that. It was heartening to see that when the Law Society of England and Wales challenged the UK government's move to cut legal aid, the High Court ruled that such cuts were unlawful and should be quashed.¹⁰ Legal aid systems are also only effective for those who are sufficiently well informed regarding the availability of these services.

In many cases, including in the US, direct support for the costs of legal representation is provided only where the relevant individual faces incarceration. Access to justice for those facing the loss of other important civil and economic rights is thus imperiled.

Where access to justice is constrained or the provision of legal aid is limited, the importance of pro bono counsel is obvious. A willingness on the part of each member of the legal profession to do some work without remuneration or reward can do much to fill the access to justice gap in their respective jurisdictions. As stated by the United States Supreme Court, “in a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro bono publico is manifest.”¹¹

Access to justice is a fundamental human right and one that pro bono lawyers in every jurisdiction need to protect and support diligently. Access to justice is particularly critical for the indigent peoples of the world, those who typically depend on support for many of their basic needs (food, housing, heating, etc.), and access to justice should be seen as no less fundamental. Furthermore, access to justice without appropriate legal advice puts the claimant at an immediate disadvantage. Pro bono lawyers can do so much to correct that imbalance.

1. The Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/index.shtml#a10 (last visited on July 9, 2019).
2. International Covenant on Civil and Political Rights, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited on July 9, 2019).
3. UN Development Program, “Programming for Justice: Access for All,” (2005) at 45–52, available at https://www.un.org/ruleoflaw/files/Justice_Guides_ProgrammingForJustice-AccessForAll.pdf (last visited on July 9, 2019).
4. 11 Hen. 7, ch. 12.
5. Johnson, Jr., Earl, The Right to Counsel in Civil Cases: An International Perspective, 19 Loy. L.A. L. Rev. 341, 342 n.5 (1986).
6. Klauser, Karl August & Riegert, Robert A., Legal Assistance in the Federal Republic of Germany, 20 Buff. L. Rev. 583, 584 (1971).
7. 32 Eur. Ct. H.R. (ser. A) (1979).
8. See Airey, 32 Eur. Ct. H.R. at ¶ 26.
9. See in particular the Law Society’s ‘Access to Justice’ campaign available at (http://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/ (last visited on July 9, 2019)).
10. https://www.ft.com/content/6a1bedcc-9707-11e8-b747-fb1e803ee64e (last visited on July 9, 2019). 
11. Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989).