Informal justice

Origins

Much of the energy of modern administrative law has been spent on alternative dispute resolution (ADR). Alternative to what? In the course of the next chapters, we shall see that this question can have several answers. We could be talking of inquisitorial alternatives to adversarial procedure; of documentary procedure as alternative to oral hearings; of internal review as alternative to tribunals; of inquiries as alternative to ministerial appeals (such as we find in the education and planning systems); of arbitration and mediation instead of litigation. There is a natural tendency, however, for administrative lawyers to think in terms of tribunals as alternatives to courts. This is, as we shall see, how the debate has evolved.

A famous nineteenth-century aphorism described justice ‘like the Ritz hotel’, as open to rich and poor, marking a growing concern over what would we should today call the ‘access to justice’ problem. The simile was a telling one. Litigation, even in essential areas, was quite simply beyond the means of the majority of the population. Legal services for the poor were exceptional. In criminal law there were ‘poor person's defences’ but even this provision was not formalised until the twentieth century. In civil cases, unpaid legal assistance was virtually restricted to charitable provision and the ‘pro bono’ activities of the legal profession. Despite patchy efforts at reform, this situation did not change materially until the introduction of the Legal Aid and Advice Act 1949. A period of relative generosity in the provision of legal aid ensued only to be followed by a serious turndown since 1990.