Improving legal participation: what is legal participation?
By Grainne McKeever (University of Ulster)
Article 6 of the European Convention on Human Rights on the right to a fair trial recognises the importance of individual citizens being able to participate effectively in the legal resolution of their disputes. The core value of participation is recognised explicitly by citizens as the literature on procedural justice makes clear. This evidences how citizens need to feel their voice has been heard by decision makers within the justice system, not just as a way of accepting the legitimacy of the outcome of their dispute but more systemically as an indicator of the legitimacy of that part of the legal system in which their dispute was located.
An understanding of what participation means in legal disputes has been examined in the context of tribunals, based on empirical work by the author and Brian Thompson (Redressing Users’ Disadvantage: Proposals for Tribunal Reform in Northern Ireland, 2010, Belfast: Law Centre NI), that led to the creation of a model of legal participation for tribunal users (G McKeever, “A Ladder of Legal Participation for Tribunal Users” (2013) Public Law 575). This model identifies seven different types of legal participation that categorise the extent to which the lived experience of delay, legal support, access to information and user expectations prevent or enable effective participation. In doing so it sets out the intellectual, practical and emotional barriers that tribunal users faced in taking part in tribunal proceedings, which dictated the nature of their participative experience.
This typology of legal participation has now been used to frame an understanding of effective participation as a central part of the right to a fair trial under Article 6 ECHR. A two-year Nuffield Foundation funded study examined the participative experiences of litigants in person (LIP) in civil and family courts in Northern Ireland (G McKeever, L Royal-Dawson, E Kirk & J McCord, Litigants in Person in Northern Ireland: barriers to legal participation, 2018, Ulster University). The research 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. Three of the seven types of legal participation in the PI’s model (engagement, collaboration, being enabled) meet the standard for effective participation under Art. 6 ECHR.
While the research enabled the analysis of the data holistically, allowing broad themes to be identifiable from multiple participants, it did not attempt to describe individual LIPs’ experiences of effective participation. Additional funding from the Nuffield Foundation has now provided the opportunity to analyse the original, anonymised data at the individual level, to develop a set of descriptors for the different types of legal participation experienced by LIPs in family proceedings cases. The research objective is to create a legal participation checklist that could be used by researchers in legal settings to identify whether the standard of effective participation required under Article 6 ECHR is being met. 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.
The reorientation of legal perspectives towards the participative experience of those who use the justice system to resolve their disputes ultimately requires a cultural shift that sees the user voice as one that has equal value to the voices of those who work in, administer and fund the system. One of the main recommendations of the LIP research was the need to incorporate multiple perspectives in the development of reform to dispute resolution processes, in part to overcome the attitudinal barriers where court users and court actors adopt stereotypically negative attitudes towards each other. The cultural shift required to tackle this 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. Here, the objective is to understand how Hagan’s principles of legal design – discover, synthesise, build, test and evolve (M Hagan, Law by Design, 2018 available at: http://www.lawbydesign.co/en/home/) – work in practice and whether future court reform initiatives could feasibly adopt Hagan’s principles. Critical to the ‘discover’ principle will be building empathy within the group, to encourage members to consider the problem to be solved from the perspective of the other members.
The mediational variations of contact theory that determine how or why contact works – relating to functional relations, behavioural factors, affective factors and cognitive factors – will be evaluated qualitatively by the research team. This project therefore aims to co-design some of the practical tools necessary to remove some of the barriers and so steer the necessary cultural change by working with stakeholders to create and understand the value of co-produced materials to promote litigant participation. Both parts of the overall research project lay the foundation for longitudinal and future assessment of attitudinal change and provide complementary components to develop the participative potential of LIPs so the state can meet its obligations under Article 6 ECHR.
Our understanding of legal participation, and the means of overcoming participative barriers, is becoming more significant as the justice system goes through potentially transformative changes. The merging of courts and tribunals into a single structure has meant that traditional differences between dispute resolution processes in these legal jurisdictions are becoming blurred. Thomas and Tomlinson have highlighted the critical need to understand how digital justice, including online dispute resolution, are likely to impact the participative experience (R Thomas and J Tomlinson, The Digitalisation of Tribunals: What we know and what we need to know, 2018, Public Law Project). We need 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. In doing so, we can help ensure that the procedural as well as substantive outcomes that are vital to the integrity of the justice system can be protected as it evolves and transforms.