The Legal Education Foundation has funded a range of projects exploring the ways in which University Law Schools can and do engage with issues around access to justice. This blog explains why the Foundation was interested in exploring this issue: it begins by setting out contemporary issues in access to justice before moving to present some of the reasons why University Law Schools might be interested in engaging further with and contributing to this agenda.
A difficult funding climate for legal services that are free at the point of delivery has impeded the ability of individuals to access legal advice and representation when they need it, whilst changes in public policy have increased demand for these services.
There is growing evidence that the withdrawal of public funding for legal advice and representation in civil law matters, combined with cuts to local authority funding for welfare, court and other services , have impacted negatively on the ability of individuals to access legal services. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force in April 2013, and in doing so, ushered in cuts of £350 million to public funding for legal services in whole areas of law, including debt, housing, welfare benefits, employment, immigration and family law. The combination of these cuts with successive legislative changes including reforms to welfare (for example, the changes to the way in which benefits are paid brought about by the Welfare Reform Act 2012), changes to the immigration rules (e.g. the Immigration Act 2014) and reduced time limits for bringing employment related cases (introduced by The Enterprise and Regulatory Reform Act 2013) resulted in increased demand for legal advice and representation. The Justice Committee, in its 2015 report on the LASPO reforms (per paragraphs 73-89), expressed concerns that there were now large areas of England and Wales where there is now only extremely limited access to provision in areas of law formerly funded through the legal aid scheme. The committee further reported that: “the extent of service available from not-for profit organisations has been diminished by the legal aid cuts and they are struggling to meet increased demand” (Justice Select Committee, 2015:12). A report published by Amnesty International (2016) argued that the cuts to civil legal aid had resulted in dramatic reductions in access to legal services, including for the most vulnerable and marginalized. (Amnesty International, 2016:3)
Organisations delivering legal advice and representation in the areas of law previously funded through the legal aid scheme are increasingly overstretched
Increased demand for services combined with reduction in funding for the delivery of legal advice and representation has put increased pressure on organisations working in the sector. At a workshop convened by The Legal Education Foundation in 2016 attendees reported that the immediate demands of delivering individual casework at scale impacted negatively on not for profit organisations delivering legal services to individuals in a number of important ways: undermining their ability to plan, reducing their capacity to collect evidence demonstrating the impact of their work, and to limiting their capacity to undertake strategic litigation and longer-term advocacy initiatives to bring with the potential to bring about systemic change.
Successive reforms to the justice system including the withdrawal of legal aid and most recently, changes in the structure of the court system and the move to digitize court processes with a view to introducing online hearings in areas of civil and family law have profound implications for the way individuals engage and interact with the justice system. Research is urgently required to understand the impact of these changes on the outcomes individuals secure in respect of their justiciable problems, and to develop interventions that help individuals to secure their rights and entitlements under the law.
The decision to leave the European Union and the complex issues this raises poses a challenge for public understanding of the law. It is imperative that civil society organisations are supported to both understand and engage with this process, and the implications of legislative changes for the individuals and communities they represent. In a climate of restricted funding and increased demand for legal services, there is limited internal capacity to undertake the detailed analysis this requires.
UK Universities have been described as: “the sleeping giants of civic leadership” (Hambleton, 2009:9). A NESTA funded paper published in 2009 argued that universities in the UK could learn from the engagement strategies adopted by the US Association of Public and Land Grant Universities in the US, who adopt a definition of University engagement which emphasizes the duty of Universities to direct their intellectual resources to address societal needs, and to position themselves as the ‘resource of choice’ for stakeholders in the community when they are dealing with an issue or problem (Goddard, 2009:24). Goddard, commenting on the moral imperative for UK Universities to develop meaningful public engagement strategies that posit engagement as central to their core functions of research and teaching, rather than an optional extra, argues that it is currently: “possible to get a good degree without engaging with major, contemporary problems and issues, and without being helped to develop the ethics and values needed to think about them. Future graduates will need more awareness of the major issues facing the world and their part in it if they are to be effective engaged citizens.” (Goddard, 2009:23). At the time of writing, University Law Schools still educate a significant proportion of individuals who go onto careers in law. The well recorded issues with lower and middle income access to legal services in the England and Wales (Flynn & Hodgson, 2017; Pleasence et al. 2015; Drummond & McKeever, 2014,) and globally (Trebilcock et al. 2012) may be considered one of the most pressing contemporary problems facing the legal profession. As such, University Law Schools have an important duty to ensure that their students are aware of these issues and their implications for both the profession and wider society, for example, through including lectures and seminars on “access to justice” in their teaching as part of the QLD (a natural home for this topic may be found within Constitutional and Administrative Law).
Since 2009, there has been increasing interest in the potential for Universities to address challenges of sustainability, economic growth, health, and cultural development (Goddard & Vallance, 2013) through improved public engagement combined with attempts to align harness the potential of universities to deliver research that aligns with these objectives. The lack of ability of individuals to secure their rights in respect of welfare, employment and immigration may be seen to be a challenge both to economic growth and public health (insert reference). At a European level, interest in promoting innovation in order to develop solutions to complex problems has led to an increased emphasis on promoting the so-called “Quadruple Helix” of innovation where: “government, industry, academia and civil participants work together to co-create the future and drive structural changes” (Curley and Samelin, 2013:3). This model of innovation promotes the involvement of the users of research and innovation at every stage of knowledge production.
Meaningful engagement with stakeholders on issues of access to justice can assist University Law Schools to access new sources of funding. Support for holistic approaches to public engagement as part of the cycle of research production has been evidenced by the availability of pump prime funding from the Research Councils UK Beacon and Catalyst funding, the establishment of the National Co-ordinating Centre for Public Engagement, who define public engagement as: “..the myriad of ways in which the activity and benefits of higher education and research can be shared with the public. Engagement is by definition a two-way process, involving interaction and listening, with the goal of generating mutual benefit” and the rise of the “impact agenda” in the allocation of research funding. For example, the ESRC funds a range of programmes intended to improve collaboration between researchers and civil society organisations, with the aim of: “providing access to world leading academic researchers” who can help organisations: “think in new ways” (ESRC website). Effective partnerships between University Law Schools and civil society organisations working on issues of access to justice can represent meaningful engagement, lead to new directions in research and provide routes to research income for Universities.
University law schools can differentiate themselves from their contemporaries by engaging effectively with civil society to pioneer research into meeting legal need and resolving justiciable problems. There is currently a paucity of high-quality empirical research driven by the needs of users of the justice system, particularly in the areas of civil and family law. The 2014 REF sub-panel for law noted that: “there were fewer instances of impact on the provision and practice of legal services than might have been expected” (REF Panel Report, 2014:72) and further that the preponderance of examples provided relating to criminal law reform and justice policy and aspects of equality, human rights and civil liberties. The panel further notes that there was: “less consideration of the importance of research in improving NGO campaigning and input to policy or service provision, and less mention of the impact on service users” (REF Panel Report, 2014:73). There are therefore opportunities for University Law Schools to differentiate themselves from their counterparts by embracing opportunities to collaborate with civil society organisations to deliver collaborative research exploring issues around access to legal services and access to justice.
The introduction of a new Solicitors Qualification Exam (SQE) as a requirement for those who wish to practice as solicitors in England and Wales represents a shift away from the current model of legal education. The indicative syllabus for SQE Part 1 emphasises the importance of demonstrating legal research and writing skills. Developing partnerships with civil society organisations, or establishing University Law Clinics that provide opportunities for students to develop skills in legal research and writing under the supervision of a qualified solicitor (see the example of Kent Law Clinic below) may deliver advantages for students in this aspect of the assessment. In addition, under the SQE proposals, time spent volunteering or working in a University Law Clinic may count towards the pre-qualification legal work experience requirement. The Teaching Excellence Framework and in particular the weight this awards to student satisfaction as a measure of teaching quality may mitigate in favour of the introduction of teaching methods and courses that allow students to gain practice experience- research from the US indicates that courses where students engage in: “real world learning experience are widely understood to result in higher student motivation, satisfaction and performance” (Rankin et al. 2014: 89).
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