Access to justice continues to decline

'Human progress is neither automatic nor inevitable... Every step towards the goal of justice requires sacrifice, suffering, and struggle…' Martin Luther King Jr

Whether technological, medical or economic, the myriad advances made during our lifetimes have been so great that it’s easy to take human progress for granted, even in areas as mercurial as access to justice.

While regressive regimes may still exist around the world and occasional injustices may occur in even the most advanced and liberal democracies, it is easy to assume that justice is broadly advancing on the illusory “wheels of inevitability” against which Dr King cautioned.

Quantifying justice globally is a difficult exercise, but it’s something that the World Justice Project has attempted for the past decade, with its Rule of Law Index. As well as open, accountable government and just laws, its near 200-page annual report recognises access to justice that is affordable, timely and delivered by competent, ethical and impartial representatives, with adequate resources.

For the second year in succession, the index has seen an overall decline in more countries than have seen improvement. While scores for top-ranked Denmark and runner-up Norway both crept up fractionally, this was not the story in most of the 126 countries indexed.

Dr King, it seems, was right. Advances towards more just societies are neither automatic nor inevitable.

Looking a little closer to home, the UK is one of those countries with both a reduced score and lower ranking, having been leap-frogged by Estonia which also stole Australia’s spot in the top 10.

This won’t come as a great surprise to people working in any part of the UK justice system. A decade of cuts to the Ministry of Justice budget have brought dilapidation, disorder and delay to UK courtrooms, while legislation and court fees have made accessing justice increasingly difficult and expensive.

The breakdown in the UK’s criminal justice system is so pronounced that it is has even been documented in popular culture such as the bestseller and blog The Secret Barrister and TV comedy Defending the Guilty.

The picture for civil justice in the UK is, according to the 2019 Rule of Law Index at least, even worse.

Despite its current decline, criminal justice in the UK still ranked 9th in the world, scoring highly for freedom from corruption and undue government influence. For civil justice, on the other hand, the UK ranked 18th globally, with “accessibility & affordability” far and away its lowest score and rank, in any category.

The difficulty and cost of accessing justice in the UK and some other relatively wealthy countries with otherwise well-functioning democracies and justice systems, is partly responsible for the global boom in legal expenses insurance.

The most recent (and incomplete) figures from legal protection companies around the world date back to 2016 and already showed a market that was producing more than €10 billion in premium income, annually.

The jurisdictions in which legal expenses insurance is available to improve access to justice is also growing. Recent ARAG launches added Australia and Ireland to our portfolio in 2019 and the total number of countries where some form of insurance against legal costs is available now totals more than thirty.

It seems no coincidence that the countries where legal protection is emerging or growing quickly, like Australia and Canada, have justice systems that share those characteristics with the UK of scoring and ranking highly in most areas, but significantly underperforming in accessibility and affordability.

Like education and health, justice is an expensive but vital benefit for governments to bestow upon their citizens, but underinvestment will quickly reverse advances that have been made over previous decades.

Legal expenses insurance is far from a panacea, but to the families and small businesses that face potential ruin through the simple misfortune of a costly legal dispute it can prove to be as important as insuring against fire, theft or flood.

Authored by ARAG