Wrestle with PESTLE: Access to justice and the role of legal aid

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Suitable access to justice is essential to any fair and equitable legal system, effectively ensuring every individual, regardless of financial status, can obtain an appropriate legal remedy. Legal aid was established to uphold this principle, offering financial assistance to those who could not otherwise afford legal representation. Since the Legal Aid and Advice Act 1949, legal aid has undergone a great many changes and is rife with challenges in the wake of various austerity measures and ongoing reforms. This article will analyse the implications of access to justice and the role of legal aid through the PESTLE framework, examining the political, economic, social, technological, legal and environmental factors that shape this area of legal practice. I believe this issue is a great way to explore the interaction between public policy and the practical realities of the justice system and legal practice.

Political

The available funding and relative prioritisation of legal aid and other forms of legal assistance is dictated by government policy. Therefore, political factors are highly significant for access to justice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) serves to show how politics can reshape the legal aid framework and the legal sector more generally. LASPO significantly reduced the availability of legal aid, removing many areas of civil law, such as family, immigration and housing, from its scope. These cuts, part of broader austerity measures, were justified as being necessary to reduce public spending but they’ve had far-reaching consequences on access to justice. For example, in the year following LASPO, legal aid provision dropped by 46%.

LASPO has been widely criticised, with many arguing that it’s disproportionately affected the most vulnerable members of society. By severely restricting eligibility, LASPO has created a “gap in justice”, whereby those ineligible for legal aid, but unable to afford private counsel, are left without representation. According to the Law Society, millions of people are now unable to access justice when they need it, with the availability of legal aid providers drastically reduced across key areas of law such as housing, welfare and immigration. In addition, areas lacking a major city have particularly sparse coverage, leaving many without local legal aid providers. There have been numerous calls for reform since the introduction of LASPO, with many advocating for a more comprehensive approach, providing legal aid to all who need it, regardless of political agendas.

Scotland has a separate legal aid system. The framework is now based on the Legal Aid (Scotland) Act 1986 and the Legal Aid (Scotland) Regulations 2002. The legal aid sector in Scotland has suffered fewer cutbacks, with the scope of cases and eligibility criteria being wider. Some suggest that Scotland’s slower approach to legal aid reform is the better approach. However, Scottish legal aid is still far from perfect – a practitioner I spoke to described it as “a complete shambles”, citing bloated procedures and inefficiencies at every turn. Legal aid provisions in Scotland are very much “on the side of the client” as far as fees and billable work are concerned. However, this can work against those seeking legal aid, due to a shrinking number of providers.

Economic

Economics are a crucial part of access to justice, with funding levels directly impacting the availability and quality of legal aid. As a public expenditure, legal aid is pitted against other spending priorities and, in periods of austerity, it’s often one of the first on the chopping block – as was the case with LASPO. These cuts have economic effects beyond the legal sector. For example, research commissioned by the Access to Justice Foundation found that providing free specialist legal advice could potentially “save the government £4.5 billion for every half a million people who receive it”, along with a beneficial “domino effect” on other aspects of the economy, such as employment. The report also suggested that investment in legal aid might not only help to “resolve problems earlier”, reducing the number of cases going to court and alleviating the current dire backlog, but also generate significant and immediate savings for the taxpayer.

The legal aid sector is itself a significant benefit to the economy, providing work for legal professionals and support staff. A reduction in funding can place pressure on law firms, particularly those specialising in legal aid work. This leads to closures and a further decline in available services. Interactive maps provided by the Law Society reveal that millions of people are now without access to local legal aid providers, left languishing in “legal aid deserts”. To make matters worse, 40% of surveyed legal aid providers are expected to leave the sector within the next five years. This of course reduces access to justice, but it can also be to the detriment of the local economies of these firms.

Chief executive of the Access to Justice Foundation, Clare Carter, emphasises that funding free legal advice is “both an ethical obligation and a wise financial decision”. On a national scale, reducing legal aid and thus impinging access to justice, potentiates tremendous long-term costs. Cuts to legal aid may leave legal issues in areas such as housing, employment and family law unresolved; in turn leading to rising mental health issues, more reliance on social welfare programmes and even increases in homelessness. These consequences, among others, can give rise to greater fiscal costs, which outweigh the proposed immediate savings from cutting legal aid. Reductions in legal aid can also undermine overall public trust in the justice system, creating perceptions that justice is available only to those who can afford it, or that the law serves only the wealthy. In turn, this can have destabilising effects on social cohesion and further harm economic stability. Therefore, ensuring adequate funding for legal aid is not just a matter of justice but also a sound economic policy that supports the health and stability of society as a whole.

Social

As should hopefully be clear from the preceding sections, the social impact of restricting legal aid and access to justice is profound. Legal aid is fundamental in ensuring vulnerable groups have an equitable access to justice. Where legal aid is scarce, such groups are left to contend with complex legal issues on their own, often resulting in unjust outcomes and further marginalisation.

A significant social consequence of limited access to justice is the erosion of public trust in the justice system. When people perceive justice to be financially inaccessible, it undermines the principle of equality before the law, which president of the Supreme Court, Lady Hale, describes as a “fundamental principle of the rule of law as we know it”. This can variously cause a decline in civic engagement and further feelings of disenfranchisement and alienation from the legal and political institutions that are supposed to serve the people.

Restricted access to justice also affects broader communities: unresolved family disputes can lead to estrangements; unchallenged housing issues contribute to homelessness and community instability. Among other things, effective legal aid enables more people to challenge unlawful government actions, protect themselves in employment disputes and secure safe housing. Therefore, legal aid might constitute a sort of ‘safety net’, helping to prevent the most vulnerable members of society from falling through the cracks.

Technological

Technology can serve to facilitate access to justice – but it can also complicate matters. Technological advancement offers improvements to the accessibility of legal services via new digital platforms, online courts, and, in recent years, AI-driven legal advice tools. These innovations could help to bridge the gap for those who might otherwise be unable to access legal services due to geographical or financial constraints. Online legal advice platforms can provide low-cost or even free guidance and virtual courtrooms can make it easier for people to attend hearings without the added difficulties physical travel can place on finances, or work and family commitments. Mediums for online dispute resolution, like those adopted in British Columbia, have been found to benefit access to justice.

An increasing reliance on technology does, however, present new challenges and steps should be taken to ensure people aren’t ‘digitally excluded’ – the gap between those with easy access to digital technologies and those without. Often due to factors of age, income or location, those who lack access to or are unfamiliar with technology may be unable to benefit from digitised legal services, meaning that technology serves only to aggravate existing inequalities in access to justice.

In addition, while AI and machine learning technologies can enhance the efficiency of legal aid services, we should be cautious about dehumanising the law and legal practice. Algorithmic decisions may not truly consider the nuances of individual cases, leading to outcomes that might not align with the principles of justice and fairness, making their application counterproductive for increasing access to justice. There are also important questions regarding data security and privacy, as sensitive personal information is increasingly stored and processed online. The JUSTICE charity has various ongoing projects seeking to understand and establish AI’s role in access to justice.

Legal

The legal framework governing access to justice and legal aid in the UK is complex and evolving. Legislations such as LASPO have significantly shaped the current landscape, but ongoing developments continue to affect legal aid and the overall state of access to justice. To reinforce prior sections, the legal profession itself is affected by cuts to legal aid,  exacerbating problems with access to justice as fewer and fewer professionals remain to take on cases.

Briefly mentioned in the political section, central to the issue of access to justice is the application of international human rights law – particularly the “right to a fair trial”, such as enshrined in Article 6 of the ECHR. This requires the UK government to ensure individuals have access to “a fair and public hearing within a reasonable time”. Per subsection (2)(c), this includes providing legal support, where necessary, to prevent serious inequalities in justice. Balancing this right with the inherent limitations of public funding can lead to difficult decisions about which areas of law should be covered by legal aid and who will be eligible. Despite this, time and again, the impact of LASPO has been harshly criticised, such as a 2018 report from the Bar Council, which found the act had failed to meet its aims.

Another point of contention is on what’s sometimes referred to as the ‘criminalisation of poverty’, with those unable to afford legal services being unfairly disadvantaged in the criminal justice system, where the consequences of inadequate representation can be severe, including wrongful convictions and disproportionately harsh sentences.

There have been some positive developments in recent years towards improving access to justice. Last year’s expansion of legal aid to cover certain areas of family law, including cases involving domestic violence, shows some progress in addressing gaps created by LASPO. Further to this, legal aid is, of course, not the only source of affordable, or indeed free, legal assistance. Pro bono work and other voluntary legal advice services can help to plug some of the gaps in access to justice. However, much work remains to ensure that the law adequately supports equal access to justice.

If you’re interested in getting involved in pro bono work, check out a comprehensive list of initiatives on LawCareers.Net.

Environmental

The environmental impact of legal aid is perhaps not immediately apparent, but it can be an area of concern in the environmental footprint of the legal profession at large. For legal aid providers, the challenge can lie in balancing effective and accessible services against the environmental impact of their work. This may involve exploring new technologies to improve time efficiency, while minimising resource consumption, or adopting more sustainable practices in day-to-day operations. The Law Society has released guidance on climate considerations for lawyers and firms. This can benefit access to justice as, for example, using technology to minimise travel emissions could also make legal services more accessible to rural communities or people with limited mobility.

Legal aid can also support environmental justice, by providing representation for individuals and communities affected by environmental harm. Disputes involving issues like pollution or inappropriate land use often require legal aid to ensure vulnerable populations can assert their rights and hold responsible parties accountable.

Verdict

Access to justice is essential to an equitable legal system. Therefore, a just society and legal aid plays a significant role in promoting this. As can be seen from this analysis, the challenges facing access to justice are not monocausal – but we can also see that the potential opportunities with legal aid are tremendous.

The legal aid framework has seen much change in recent years, with both positive and negative outcomes – albeit more so the latter. Ultimately, future reforms must prioritise access to justice, ensuring that everyone, regardless of financial standing, has an equal opportunity before the law.