Improving legal participation: what is legal participation?
Published 06/09/2019
In this article for The UK Administrative Justice Institute, Grainne McKeever discusses the meaning of legal participation in the light of Article 6 of the European Convention on Human Rights (ECHR) and how that meaning might have to be rethought in a world where the judicial system is becoming increasingly digitalised.
Article 6 ECHR (The Right to a Fair Trial) emphasises the importance of individual citizens being able to participate effectively in the legal resolution of their disputes. Grainne McKeever and Brian Thompson’s research led to the creation of a model of legal participation for tribunal users which sets out the intellectual, practical and emotional barriers that tribunal users face and dictates the nature of the participative experience.
Research conducted by The Nuffield Foundation found that effective participation exists when the litigant is able to influence the proceedings in such a way as to allow the court to reach a just decision. In short, the LIP has to be able to present his or her case with prior access to information and support. This requires a LIP to be informed, capable, supported and sufficiently emotionally detached to present his or her case.
The data collected by The Nuffield Foundation is now being analysed at individual level, to develop a set of descriptors for the different types of legal participation experienced by LIPs in family proceedings cases. The aim is to create a standard of effective participation required under Article 6 ECHR. Ultimately, with further testing and iteration in both courts and tribunals, the checklist might be developed for use by court and tribunal actors to identify participative gaps in court processes, and for future training of judges and accompanying judicial guidelines.
In order to make participative experience a focal point of legal perspectives, a cultural shift is required where the user’s voice is as important as the voices of those who work in, administer and fund the system. This cultural shift is a long-term challenge, but an understanding of how it could be progressed will also be part of the research focus through the creation of a LIP Working Group, comprised of court actors and court users. Our society needs a more robust understanding of the basic legal minimum required for citizens to participate effectively in the legal system, and the obstacles to overcoming participative barriers.
For a more comprehensive analysis, please visit the original article on UKAJI.
