Routes to Justice
The ability to defend one’s rights in a court of law is in principle one of the fundamental entitlements of modern citizenship. In practise, however, many individuals face significant barriers to their attempts to access the British justice system, whether because they cannot afford legal advice and representation, they lack the necessary expertise to identify the support relevant to their particular problem, or because they do not have the free time to dedicate to advancing a legal claim. There can be no just society without equal access to justice, as the Ministry of Justice acknowledged in a recent document: “The ability of individuals to resolve their legal issues is vital for a just society, and everyone must have the ability to avail themselves of the justice system when they require it. It is crucial that people should be supported through this process.” Accordingly, it is the responsibility of government to ensure that everyone, regardless of background, income or location, can exercise their legal rights. This responsibility is manifested in the legal aid system, wherein the state provides funding to law firms and charities so that they can offer legal advice and representation to those in need, whether subsidized or free at the point of service.
The Routes to Justice project is an attempt to test the feasibility of applying AI and data analytic technologies to support and enhance access to justice in the legal aid sector by connecting users with the right support, enabling providers to more easily understand the needs of their clients, and helping a complex system become more efficient and easy to understand. It is funded by Innovate UK, and being carried out by Etic Lab in collaboration with various stakeholders in the legal aid sector. The background to the project is as follows.
In 2012, as part of the cost-cutting measures associated with its attempts to reduce the national deficit, the Conservative-Liberal Democrat coalition government passed the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). This legislation sought to reduce spending within the sector whilst simultaneously returning legal aid to “first principles” by redefining which legal procedures would be considered eligible for government aid as well as who would be entitled to access support, with the professed goal of ensuring that resources were focussed on “those most in need.”
As a part of this streamlining effort, several areas of legal practise were removed almost entirely from the purview of state aid – most significantly (in the civil field at least) family, employment and welfare. Previously, a prospective litigant would have been able to seek both legal help (advice and support regarding a potential suit, as well as preparation for court or tribunal) and representation in such cases from specialized practises and charitable organisations free of charge (pending, of course, a means test). This system was supported by government contracts awarded to law firms as well as third sector bodies such as Citizens Advice. LASPO withdrew a significant portion of this funding, whilst generally imposing more stringent criteria of eligibility upon those procedures which remained within the scope of legal aid. It also continued a long-term trend of reducing the fees paid out to solicitors who take on legal aid cases. The inevitable result of this has been a reduction in the availability of affordable legal help and representation in these areas, with the MOJ’s report stating that “the number of providers doing legally aided civil work has fallen by 32% overall” as of 2019.
The stated premise of the LASPO reforms was that it would be possible to reduce overall government expenditure on legal aid without affecting the ability of “everyone…to avail themselves of the justice system when they require it.” The plausibility of this goal rested on a series of assumptions. First of all, the government believed that withdrawing the bulk of legal aid funding from the fields of family, employment and welfare would disincentivise “unnecessary” litigation, motivating people instead to consider non-legal solutions to their problems. For instance, as pointed out by the authors of a report by the Equality and Human Rights Commission, the MOJ predicted that withdrawal of legal aid from family law cases would result in an increased uptake of mediation services, and particularly “an increase in Mediation Information and Assessment Meetings (MIAMs), which establish whether mediation is an appropriate form of dispute resolution.” As it transpired, the reverse proved to be the case, most likely because, as the EHRC suggest, “[prior] to LASPO most referrals for MIAMs (over 80 per cent) had come from legally aided solicitors.”
More broadly, the EHRC reports that the number of private family law cases fell by only 2 per cent between 2012-13 and 2016-17. Meanwhile, the number of litigants who engage in such procedures without legal representation increased from 42 to 64 per cent, suggesting that rather than settle their issues away from court, a significant number of individuals are simply choosing to proceed without qualified support. These figures demonstrate an instance in which the reduction of the supply of legal aid has failed to control the demand for litigation. The counterpart to this scenario is, of course, the case in which the unavailability of financial aid or the prohibitive barriers to entry cause an individual with a legitimate claim to turn away from the legal system altogether. These latter instances are obviously harder to put a number to, but all parties broadly share the “concerns” of the EHRC, “that LASPO has had the effect of preventing necessary litigation, rather than only discouraging unnecessary litigation.” The EHRC, meanwhile, has found that the inability to access legal aid has led to severe emotional distress, the aggravation of physical conditions, financial hardship and the incurrence of debt, housing insecurity and familial instability for those affected, who tend disproportionately to belong to the disadvantaged groups whose rights the LASPO reforms were supposed to protect. Issues which could potentially have been solved relatively expeditiously through access to legal aid become more complex and intractable the longer they remain unaddressed, whilst also being compounded by other social, financial or medical problems (a phenomenon described in the literature as “clustering”). The risk of falling into this downward spiral is such that some have argued that, from the prospective of the government budget in its totality, the LASPO cuts represent a false economy, since the costs deferred in the legal aid sector will be paid out several times over once the severity of their problems has forced these unfortunate individuals to depend on frontline services such as the NHS.
The difficulties experienced by “those most in need” in their attempts to access legal aid speak to a further assumption inherent to the LASPO reforms – that the charitable or “third sector” would take up the slack left by the withdrawal of funding from dedicated legal practises. This was always a problematic presumption, not least since the third sector was itself profoundly affected by legal aid cuts. Citizens Advice, for instance, which had preciously been one of the primary providers of free specialized advice relating to family, employment and welfare, was stripped of £19 million of funding by LASPO. The MOJ reflects somewhat ruefully that “[the] advice and third sector have generally reported an increase in demand since LASPO. However, as many argued, these organisations are unable to ‘fill the gaps’ where legal practitioners are absent. Other funding sources, such as local authority funding, have also been reduced and the not-for-profit organisations, working mostly in social welfare and immigration law categories, are said to be leaving the legal aid market.” One identified consequence of this is the development of so-called “advice deserts”, geographic zones in which access to expert support in certain areas is essentially non-existent. Moreover, where charitable bodies are able to offer support it is likely to take the form of what the EHRC calls “general advice”, a one-off consultation with a non-specialist which “does not provide the level of support that casework would, or extend to representation.”
In short, the LASPO reforms produced a profound upheaval in the legal aid ecosystem, with the withdrawal and reorientation of funding creating a landscape which is substantially different to that which had developed over the course of the previous decade. Legal aid provision is now characterised by a complex, uneven web of larger and smaller bodies offering varying levels of advice and support for a range of legal issues, with provision fluctuating significantly from region to region. In general, the sector has experienced a loss of expertise and institutional memory, whilst a lack of central oversight means that achieving an overall perspective on what forms of support are available where and to whom is itself a challenging prospect. It ought to come as no surprise, then, that potential service users may struggle to find help with their legal problems, or even to access the support which will allow them to define these problems in the first place. It seems uncontroversial at this point to suggest that LASPO has fallen some way short of its stated goal of ensuring that “everyone [has] the ability to avail themselves of the justice system when they require it.”
This is where Etic Lab comes in. We aim to use our expertise in the application of AI and data analytic technologies to the social field to investigate the feasibility of developing tools which will allow us both to produce a legible map of the contemporary legal aid sector as well as to help service users find the support they need within this space. We believe that Etic’s approach is uniquely suited to addressing this problem. Our role, as we see it, is not simply to build tools which address a narrowly defined problem, but to develop solutions which address the broader institutional and social context in which these tools will be used, and wherein their utility or uselessness will ultimately be proven. To this end, we are committed to engaging both with existing research and the experience of providers and users in order to deepen our understanding of the sector and to ensure that our suggestions respond as broadly as possible to the issues currently facing the organisation and provision of legal aid. These are only words, however. The actions by which we will substantiate them will be described in further posts.