Research report: ‘Access to Justice – a current portrait’Hilke Grootelaar
As was proved yet again last week in the Second Chamber, there is great interest in the budget cuts made to the legal aid system. And rightly so, because this ultimately concerns the quality of the rule of law. In the past few years the government has taken various measures which affect the access to justice. This has led to public debates on several fronts. The First Chamber organised an expert meeting on the 4th of February 2014 with authoritative legal experts and subsequently organised a debate on the 11th of March 2014 about the current state of the rule of law. What became extremely apparent from the expert meeting and the debate is that a widespread feeling exists that the quality of the rule of law in the Netherlands is currently under pressure. The concerns on the access to justice are illustrated by the various motions that were carried by the First Chamber. In January of this year it became clear that state secretary Teeven wanted to continue the cuts in the legal aid budget despite the critique from the First Chamber. In February 2015 the government decided that the former mayor of Utrecht, Wolfsen, should be chairman of the committee that is currently researching the rise in costs of the subsidized legal aid.
The concerns that have been voiced both within and outside of the First Chamber by various parties provided the stimulus for the Legal Services Counter (Juridisch Loket) to request the Montaigne Centre for Judicial Administration and Conflict Resolution to conduct an explorative research on the cumulative impacts that the various government measures have on litigants. Therefore, in the spring and summer of 2014 I conducted, together with colleagues, further research on the measures that have been taken on this terrain since 2007 and on the accumulated consequences thereof on the various types of litigants. Our research report (only available in Dutch) comprehensively discusses our findings. In this blog I will discuss the most important and the most striking findings.
First of all our sketch of the historical context shows that the design of the access to justice has always been, and will continue to be, a challenge for the legislator. Not every adjustment of the system of subsidized legal aid necessarily leads to an infringement of fundamental rights or is per definition constitutionally unacceptable. But the continually increasing budget cuts and adjustments give rise to the question where the boundaries lie and when these have been reached.
The ‘access to justice’ is not a specific concept. Both in government policy and in academia this concept is subject to change. While previously in government policy the emphasis lay on ‘getting your day in court’, the emphasis is now placed on the prevention of legal proceedings and working towards sustainable solutions. This paradigm shift from the access to justice as an effective realization of rights to a preventative conflict resolution matches the trend towards alternative forms of dispute resolution, dejuridification and self-reliance. Ter Voert also speaks about the ‘access to an effective, just outcome, wherein it is not only important that access to legal aid exists, but that the actions of citizens also lead to actual results’. The continued evolution of the concept ‘access to justice’, leads increasingly to questions such as: is the goal achieved, is the problem solved and is the outcome accepted as being just? (see M. ter Voert, ‘Toegang tot recht in beweging. Over burgers en hun oplossingsstrategieën’ in: Justitiële Verkenningen, jrg. 40, nr. 1, 2014, pp. 62-76)
However, does the accumulation of government measures still enable the citizen to achieve an effective and equitable solution to his or her question? To give an answer to this, we firstly studied all the relevant parliamentary documents and policy documents published from 2007-2008 to 2013-2014. This resulted in a detailed overview of ultimately 74 measures. In order to get a better grip on the question what the practical implications of a relatively abstract government measure are for a particular litigant we worked with so-called ‘personas’ previously designed by the research bureau Motivaction for the Legal Services Counter (Juridisch Loket). A persona is a fictional character who represents a portion of a target group. Through the use of a persona a changing context can be made transparent. In the end we worked with seven personas, each of whom was as representative as possible for a larger target group of litigants. The personas differed from each other in age, working conditions, home situation, degree of self-reliance and language proficiency.
The notion of self-reliance was a recurring theme in our research. Various recent governments have developed a focus on the ‘empowerment of citizens’: the responsibility for the maintenance of society shifts from the government to the citizens. The current policy for subsidized legal aid places the emphasis on informing the citizen about the different possible solutions from which the citizen can choose, promoting self-reliance and stimulating alternatives of court procedures. This raised the question how self-reliant an average litigant actually is. During the creation of the personas we therefore identified four factors that influence the degree of self-reliance:
- How familiar is the persona with the law? Does he know where to search for a solution and is he aware of his rights?
- What is the attitude of the persona towards conflicts? Does he avoid conflicts or is he active in searching for solutions?
- How familiar is the persona with the internet? Can he make use of the internet to gather information and knowledge and thereby to take responsibility for his problems? What is, in other words, the online expertise of the persona?
- How proficient in languages is the persona? Both knowing what your rights are and knowing where to go on the internet to read more about these are closely linked to the degree to which someone has mastered the Dutch language.
We studied the possible impact the government measures can have for the conflict avoiding Mohammed, who masters the Dutch language moderately and whose welfare payment has been stopped by the municipality, as well as for Ans, a single mother from Amsterdam who lacks online expertise and who has a consumer dispute about her washing machine, and for the self-reliant student Joyce who has a rent dispute with her landlord. More specifically, we examined the impact of the measures on the access that the litigant has to information, guidance, consultation and negotiation and a neutral binding intervention for the same situations in 2007, 2014 and 2016.
Our research shows how complicated reality is. A litigant is not either self-reliant or vulnerable as presented by previous governments. The case studies show that a variety of factors influence how the litigants deal with their problems. For example persona Johan is very self-reliant and can easily find his way in the law, but he is still looking for the interpretation and confirmation of the information which he found online. The case of our persona Rachid showed that, while he is prepared to solve his problems with his wife in a friendly manner, he is still obliged to turn to a lawyer and judge. Sometimes going to court is not a choice. The case study of Reshmi demonstrated that the capacity to solve a problem can be present, but that the attitude of a litigant is just as important. Reshmi can do it, but does not want to and therefore acts passively and dependent.
The case studies used mostly had a practical and explorative function in this explorative research. They helped us examine the cumulative effects of the government measures. This provided a nice addition to the outlined changing concept wherein the current government measures are carried out. But, let us be honest: personas remain fictional characters and their problems remain hypothetical. In line with this, it would be very valuable, in our view, to provide an empirical follow-up to this study. When doing so, not only the experiences of the litigants, whom it concerns, but also the experiences of legal aid providers, mediators and lawyers should be incorporated, because especially those groups have expressed a lot of critique on the government measures.