As the bill slashing civil legal aid speeds through parliament, a leading academic has exposed the ‘doublethink’ of the government, which appears to have one set of rules for the rich and another set for the poor.

Dean of Laws at University College London, Professor Dame Hazel Genn, contrasted the Ministry of Justice’s civil justice policy, which seeks to cut civil legal aid and encourage mediation as an alternative to court, with its desire to promote the use of the courts to international clients to settle business disputes.

Speaking last month at the Chartered Institute of Arbitrators mediation symposium, Genn said the government’s drive to push parties into mediation reflected a ‘jaundiced view of the law’ that threatened access to justice and acted as a justification for removing resources from the civil justice system.

She said: ‘Mediation may be about access, but it is not about justice,’ and stressed that alternative dispute resolution was a supplement to a well-functioning civil justice system.

Set against a background of the chilly fiscal climate and the need to save £2 billion by 2014/15, Genn noted the rhetoric supporting the drive to push people away from the courts and towards mediation.

The government says individuals should ‘solve their own problems’ rather than turning to the courts; and refers frequently to the spurious notion that we have become a ‘litigious society’ in which people too easily seek redress through the courts for perceived injustice.

Instead, it says the courts should be reserved for those cases where there are ‘genuine’ points of law or there is a threat to liberty or security.

Genn cited the government’s consultation on legal aid reform in November 2010, when it stated its desire to ‘stop the encroachment of unnecessary litigation into society by encouraging people to take greater personal responsibility for their problems, and to take advantage of alternative sources of help, advice or routes to resolution’.

It also spoke of moving ‘towards a simpler justice system - which limits the scope for inappropriate litigation and the involvement of lawyers in issues which do not need legal input; and which supports people in resolving their issues out of court, using simpler, more informal remedies’.

Genn also drew attention to rhetoric promoting mediation to support the withdrawal of legal aid.

Justice minister Jonathan Djanogly, speaking at the CEDR 20th anniversary awards in November 2010, had said: ‘The courts should not be used as arenas of conflict, argument and debate when a more mature and considered discussion of the issues at hand between parties could see a better outcome for them.’

And justice secretary Kenneth Clarke, later the same month, stated that our legal aid system is one of the most expensive in the world, which ‘encourages’ the use of courts and uses taxpayers’ money to fund ‘unnecessary litigation’.

Clarke said the government needed to discourage people from resorting to lawyers ‘whenever they face a problem’ as alternative dispute resolution is ‘more effective and suitable’.

Then there was the MoJ’s consultation on solving disputes in the county court, which said the civil justice system should, for the majority of its users, focus more on dispute resolution, ‘rather than the loftier ideals of justice that cause many to pursue their case beyond the point that it is economic for them to do so’.

Genn notes the observation of civil liberties campaign group Justice on the government’s agenda: ‘We face the economic cleansing of the civil courts. Courts and lawyers will be only for the rich. The poor will make do as best they can with no legal aid and cheap, privatised mediation. There will be no equal justice for all - only those with money.’

How all this contrasts with the government’s objective to encourage the rich, and particularly international clients, to use English law and the English courts.

In its September 2011 plan for growth, the government said: ‘The rule of law is one of our greatest exports but there is more that we can do to help UK legal services thrive.’

And an MoJ statement in 2011 said: ‘More and more people from overseas are choosing to make use of UK courts to help resolve issues, while the government wants to see more people at home choosing mediation… measures to encourage this include automatic referral to mediation in small claims cases.’

What the government is ignoring is that restricting access to the courts for its own impecunious citizens and the consequent undermining of the rule of law, may damage the reputation of the English legal system and deter the wealthy foreigners it seeks to attract, from using English law or the splendid new Rolls Building.

Something that the chairman-elect of the Bar Council warned when he spoke to the Gazette earlier this year about the impact of the legal aid reforms.

Michael Todd QC said: ‘What is attractive to people when they think of doing business in the UK is the fact that we adhere to and promote the rule of law and access to justice.

‘If you undermine the system of justice, I fear it may affect the perception that people have of the English legal system and their desire to use it, and may make people think twice about whether they want to do business here.’

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