With the justice system in a constant state of flux and no reduction in need, research in this area needs to focus on finding out what kinds of services actually deliver justice for clients, says Natalie Byrom. Pic by Wilderdom (from Flickr)
Last month, the Ministry of Justice published the findings of its Legal Problem and Resolution Survey (LPRS), the latest in a line of surveys aimed at gathering robust data on the experience of legal problems among the general population.
The legal press reported that the survey had been ‘slipped into the public domain a year late’. Despite the tenor of the coverage, in actual fact, the report findings were remarkable for being largely uncontroversial. They confirmed well-established patterns in the experience of legal issues, such as those with disabilities or single parents, being more likely to ‘experience multiple legal problems’ than other people.
As director of research at a foundation which funds organisations to deliver legal education with the aim of helping individuals to secure their rights, many of which provide social welfare law services, my concern goes beyond the reported findings.
I question whether the research was asking the right questions in the first place. Rather than continuing to study legal need – which is already well established – we urgently need research to help us understand whether and how people with those legal needs are securing the outcomes they are entitled to under the law.
The findings of the early iterations of these legal need surveys, the first of which was published in 1999, were groundbreaking. They provided insights into the uneven patterning of legal problems across the population, the ‘clustering’ of legal problems, highlighting low levels of legal knowledge, and the high proportion of people who take no action at all to resolve the legal issues they face. They helped to answer the question of where public funding for legal services should be directed, if the aim is to distribute them to those in greatest need. These findings, however, required considerable investment: the successors to the original survey, the Civil and Social Justice Surveys and the Civil and Social Justice Panel Surveys, were publicly funded, high-quality and high-cost.
Recent attempts to deliver findings in relation to legal need have relied on cheaper methods of varying robustness, in an attempt to deliver similar data. In the context of both restricted funding for research into the justice system and rapid change in the way civil and family justice is delivered, this kind of research has not been money well spent. It cannot deliver information needed to change policy, or help us to understand what types of support are needed to ensure that people secure justice.
While the methodology adopted by the Ministry of Justice to produce the LPRS is more robust than some of the other attempts to deliver this information, its persuasive power is limited. A lack of funding for large-scale surveys – using sampling methods capable of delivering findings which can be generalised to a wider population – means that research of this kind cannot provide reliable insights into the granular experience of legal problems.
For example, press reports made much of the LPRS findings in relation to family law, yet these are based on the experience of only 124 individuals (MoJ, 2017:11). Some findings, including those around the cost of legal services acting as a barrier to seeking legal advice for family law matters, are based on the experience of just 20 people (MoJ, 2017:76). This is not to say that cost does not act as a barrier to seeking advice, but with such small numbers surveyed, the results are easily dismissed by those who might be minded to ignore them.
Legal Needs Surveys came to the fore at a time when there was greater public funding available for legal services, and the political will to identify and tackle legal need. The climate now is starkly different. With organisations in this field under such financial pressure and resources increasingly restricted, there is a more pressing need to understand what factors are important in helping people to achieve just outcomes. Only when that information is available can we design interventions that ensure that the justice system is delivering its primary purpose: helping people to secure the outcomes they are entitled to under law.
Even the most robust Legal Needs Surveys only capture the prevalence of problems, the action respondents take and whether respondents perceive the result to be positive or negative. They do not provide information as to whether the outcomes people achieve are just. Particularly troubling is that the latest survey defines “legal capability” as “confidence in dealing with hypothetical problems without professional advice or support”. This definition of capability does not address whether the confidence expressed by individuals is well founded.
What is needed is research to establish what interventions are required to ensure that people achieve legally just outcomes in relation to their problems. The move towards online courts for many civil, administrative and family law matters presents a once-in-a-generation opportunity to readily capture data about case outcomes. This information can be used to help develop ways of supporting people so that they achieve the justice they are legally entitled to. This approach has already been used successfully in America, where researchers have measured the impact that having legal representation makes to the outcomes for clients in specific legal settings.
Academics in the US have recognised that embracing an expansive research agenda, equipped to answer questions regarding what works in helping individuals secure just outcomes is imperative. This must be the case, even if the findings produced are challenging to fundamental beliefs and practices. In the context of rapid change in the justice system, and restricted funding for justice system research, it more important than ever that studies in this field collect data about the actual outcomes of legal problems for clients, in order that we can understand whether individuals are securing their legal rights. This is the true measure of access to justice.
- We know what the problems are. Time to ask about solutions - 12th April 2017
- State of the Sector survey: We need your help - 15th February 2013