ESSAY: Parliament used the Legal Services Act 2007 to enshrine the need to increase access to justice within legal services regulation, writes Alex Roy of the Legal Services Board. As one of the eight regulatory objectives, ‘access to justice’ forms a central part of the Act’s definition of the public interest case for regulation. However, ‘access to justice’ is itself an often controversial term that has proven difficult to precisely define or even describe.
In a 2010 paper , we described it as ’the acting out of the rule of law in particular or individual circumstances’. For individuals facing legal problems the essence of ‘access to justice’ must be the ability to solve the problems they face, quickly and fairly.
- The next publication on the JusticeGap series will look at the role of public legal education in promoting access to justice
- The JusticeGap recently launched its own legal education project – with Hackney Community Law Centre and University College London – read more HERE.
- Alex Roy is head of development and research at Legal Services Board. This article is written with input from Crispin Passmore, head of strategy at the LSB.
Academics, practitioners and governments of all persuasions have recognised that consumers increasingly want to know more and be more empowered when dealing with professionals. This has in part been driven by the increase in the basic skills of the population over the past 50 years, and been accelerated in the past decade with the growth of the Internet and the free availability of information. Legal services can be part of this growth in empowerment because they help individuals play an active part in business and society, but, the inaccessibility of legal services (whether because of cultural factors, price, location, design or delivery) has meant that they have failed to support the desired empowerment to the extent required.
Closing the gap
Public legal education (PLE) has tried to close the gap, by supporting consumers to gain the skills necessary to handle basic legal issues and engage with the legal market. Nevertheless, despite interesting experiments, the small and partial nature of interventions mean that it has not worked (and here we can look at the amount spent on public health campaigns and online/telephone infrastructure to get an idea of the scale of investment needed). We believe that IT provides a possible new way to close the gap and help consumer’s access legal services. This is more than simply commodifying or making standardised routine public legal education, it is also about actively reducing the cost of legal services to make the services simpler, less intimidating and more affordable.
‘Solicitors are £60 before you walk in the door … so you’re almost pushed to do everything you possibly can through friends and family and the Internet… you’ve got to be in a really serious position before you engage a solicitor cos it costs a lot of money.’
Understanding consumer needs from legal information sources, Vanilla Research 2012
In a standard market we accept that a fair price will be agreed between those supplying services and those buying the services and some individuals will be able to afford the services and some not; that is fine, it is a market after all. But our need in legal services to ensure access to justice for all challenges our usual assumptions of how markets should work and requires the intervention of Government and regulators to ensure that, where we consider services essential, access is available to all. Currently this is addressed through a mixture of direct government subsidies (i.e. legal aid), market liberalisation (i.e. the Legal Services Board’s (LSB) regulatory reforms), and provision by third sector and not-for-profit organisations.
Potential for change
With legal aid facing cuts, the importance of market liberalisation and alternative provision to ensure access to justice grows. The cost of advice (itself driven in part by complexity of the legal system) provides one of the greatest challenges to increasing access. Public legal education has tried, and so far failed to bridge this (growing) gap. In this context, the LSB was interested in the extent to which the Internet could be used to increase access to justice by both lowering the cost of advice and potentially providing a greater range of routes for consumers to access advice.
Furthermore, we believe that the Internet has the potential to break down barriers between general, tailored and assisted information, advice, negotiation, litigation etc to provide consumers with greater integration of service across their legal needs.
While the LSB itself has no desire or remit to either provide or directly develop online advice services, we do believe that we can take a role in exploring consumer views, developing evidence and encouraging others. In this instance, we commissioned Vanilla Research to hold 10 focus groups across England and Wales with a mixture of individuals, some of whom had recent experience of legal services, some who were expecting to use legal services and some who had never used legal services. In addition to this, Vanilla Research carried out eight interviews with individuals from organisations involved in providing advice or information services to consumers.
It is worth noting up front that the methodology used in this research was qualitative, in other words, in does not attempt to produce results that can describe accurately those of the population as a whole. Instead, it seeks to gather detailed view from a smaller random sample of individuals to allow us to understand in detail the types of issues that individuals in the wider population may experience.
‘I’d have a problem going to a solicitor anyway… they always seem stuck up and talk to you in language you don’t understand. I’m a simple person.’
For those interested in access to justice the results of our research make interesting, if in many areas perhaps unsurprising, reading. Consumer confidence in dealing with legal services was low; they were reluctant to engage with legal services, keen to find alternatives to avoid the potentially high and uncertain cost that might accompany formal legal services.
Too much choice
The report describes their view of legal services as a market ‘shrouded in a degree of mystery and aloofness’. Quickly the research found that consumers were keen to use the Internet as the first port of call in finding the legal services that would meet their needs, though they were unsure where to go for honest impartial advice. As many of us using the Internet have found, often there is too much information and choice, leaving you uncertain where to go or who can be trusted. In common understanding, consumers are looking for brands that they know and trust.
The desire to use the Internet reflects in many ways broader social trends in the way that individuals interact. A, a desire to find legal solutions in the same way that individuals use other services should not perhaps be a surprise. Where in the past individuals buying services sought recommendations from friends, family, neighbours, now online communities provide a much wider source of knowledge and experience from which to find suitable recommendations. The research found that consumers could see real benefits in simply going to an online community and finding directly relevant examples of similar experiences in legal services as in other services, rather than asking around until they found someone with an experience like theirs.
The power of the Internet to provide opportunities to bring together communities of users with providers of services within the home or where-ever else an individual chooses to access them opens entirely new possibilities to the delivery of legal services. In addition, this research demonstrated that consumers are keen to exploit this potential more to meet their legal needs. This has huge implications for the development and design in future of legal services. Furthermore, our current perspective of the types of services offered today is limited by existing technology, as technology develops further, the reach of the Internet into legal services may be much more radical and effective than we could currently possible imagine.
Given the clear interest in using the Internet more to help meet their legal needs, our research asked consumers what a service that they would like to use would look like? It was clear, at least among the consumers included in this research, that they were looking for a ‘one-stop-shop’.
Something that could take their legal problem and ideally lead them directly to the service that would help them solve their legal need. They were clear that they were looking for something more than just a site that told them that they did indeed have a problem and pointed them towards other sites. This is not surprising, but consumers then struggled to find a site that they could trust and could help them now. Perhaps the clearest message from the research was that consumers wanted a website that was independent and trusted and would give them confidence that it really would deal with their legal problems. This implied a service that not only addressed their problem, but also did not try to sell them other services that they did not need and one that delivered a level of quality that assured them that the problem would be solved.
Perhaps least surprising was that the consumers who participated wanted the service to be free. This is perhaps a function both of the expectations that people have of the services available on the Internet and the reluctance to commit to paying for something before being convinced that it will deliver value. Indeed the inability to know costs and judge value for money was at the heart of consumers’ reluctance to engage with legal services altogether. Whether such reluctance would be overcome in the presence of simple transparent pricing together with consumer recognition of brands will be interesting to see as the market develops.
‘If you Google legal services now you come up with a range of different sites trying to pitch a brand of “this is independent” – there is confusion out there.’
Two inter-related challenges exist in delivering on consumers’ desires for an Internet site: their expectations of impartiality (with the need for it to be funded) and the need for it to meet necessary standards of quality. Trust in any Internet site is clearly of paramount importance – this includes both trust in the impartiality of the advice and its quality. Traditionally this impartiality is associated with government and third sector organisations, while quality is more difficult to grasp. However, while impartiality may be an easier brand to access in the absent of a profit motive, companies such as John Lewis manage to balance profit motive and consumer trust. It is certainly conceivable that there may be private sector solutions to the trusted provision of online legal services.
For more general legal advice, third sector providers currently dominate the provision of online legal advice, though trusted they face the two other common challenges – awareness and quality. The launch of the Money Advice Service in recent years demonstrates the scale of the problem and cost of raising awareness in a website designed to deliver basic advice with signposting. Getting people to recognise that a site is there and what it can do is a significant and often very expensive challenge.
Ensuring quality is maintained on a site involves not only setting up the systems that can deliver a range of legal advice across the areas selected, but also ensuring that the systems are regularly updated to reflect changes in the law. Of course, in some areas of law the systems to deliver complex legal advice have already been developed, tested and proven e.g. some online will systems. The scale of the challenge will depend on the area of law and the ambitions of those providing the advice. Of course, it should not be forgotten that ensuring quality is a familiar, if perhaps not yet perfected, challenge for regulators. If anything the Internet has the advantage of brutally exposing poor quality which traditional mediums can hide. Evidence whether through the recent LSB research on wills or studies of the quality of civil advice (e.g. Moorhead, R and Harding, R (2004) Quality and Access: Specialist and tolerance work under civil contracts) have not provided great confidence that high quality advice is always available in the current market.
Inevitably, for-profit companies will seek to provide legal services online. They will have the advantage of financial backing to develop the Internet delivery of advice but will have to find ways to gain the trust of consumers in order to monetise their investment. Not-for-profit organisations have already developed many online delivery mechanisms, but they may need to consider greater sharing of resources or online presence to boost awareness of consumers of what is available.
‘You don’t want to get the lawyers involved – it’s sending in the heavies, sending in lawyers with baseball bats!’
In conclusion, we have been aware for some time that access to justice is both important and a problem in our current legal system. We believe that now is the time to look beyond Public Legal Education for the solution.
Our research has demonstrated the existence of a potentially significant demand from consumers for online services to bridge the gap by providing affordable, accessible and understanding legal support for consumers. People worry that liberalisation of legal services is making litigation more common and a compensation culture in emerging trivialising legal disputes in a rush for perceived easy money. However, we believe that reducing costs and increasing the availability of legal services may mean that the fear of getting lawyers involved can be reduced and access to fair dispute resolution increased.
Significant challenges remain, though many are common across all areas of legal services: ensuring quality and getting people to the service that meets their needs. Many third sector organisations are already actively developing the solutions that consumers want, though greater coordination is needed to deliver the biggest benefits.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award