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Access to Justice Alarm

I want to raise an SDG 16.3 alarm and appeal for Canada to lead. Let me explain. The Sustainable Development Goals (SDGs) constitute the 2030 development agenda of the world, adopted by the UN’s heads of state and government in September 2015. All efforts on development are coalescing around these goals. Goal 16 is to promote “peaceful and inclusive societies for sustainable development”, provide access to justice for all and build effective, accountable, and inclusive institutions at all levels”. Which is huge. So it’s broken up into 13 targets. My focus is on access to justice. This is target 16.3, with its indicators:

Click on the image to enlarge.

You can see that with all other UN member states Canada committed to promote the rule of law at the national and international levels (a fairly general target – not too hard to achieve) and to ensure equal access to justice for all (much more concrete and challenging).

How does one ensure a lot of access to justice? You need good data and indicators as a foundation. Who has it, who lacks it, and is what you’re doing is fixing it? In Para 74 and 75 of the document with which the SDGs were adopted a number of principles were agreed on regarding follow-up and review. Principle (g) is key: “the goals and targets will be followed-up and reviewed using a set of global indicators”. The UN member states also say follow-up will be “rigorous and based on evidence, informed by country-led evaluations and data which is high-quality, accessible, timely, reliable and disaggregated by income, sex, age, race, ethnicity, migration status, disability and geographic location and other characteristics relevant in national contexts”.

So far so good. The assumption: if you publicly show progress or lack of it through rigorous and credible data you will create incentives for states and others to do something and move towards evidence based working towards innovative solutions. It works fairly well in the health sector: publishing and sharing numbers on cancer deaths creates pressure to reduce the number of cancer deaths and to scale up innovative cures that work.

But it’s not as simple as it sounds. Using data as an engine for change assumes a number of things. Firstly, that you have data – the right data. Secondly, that the data makes a compelling case. Thirdly, that the data is widely available and easy-to-use. And finally, that there is some kind of actionable horizon: solutions are possible and can be developed and rolled out.

Looking at the state of things I make the following global assessment on SDG Target 16.3. First, there isn’t much relevant access to justice data. The little data that is there is mostly output data (like the ratio inhabitants vs. courts and judges). That is of limited use. Knowing how many courts and judges you have per 100.000 inhabitants tells you little about actual access to justice. The data you really need concerns the needs and experiences of users of the justice system. What justice problems do they have? What do they do when they have them? Do they get resolution? If they don’t, what consequences does this have for them? On the compelling case: the only lead we have is the 2008 UN estimate that 4 billion people suffer from lack of adequate access to justice. I think the number of even higher because the 4 billion assumes that the justice systems in rich countries don’t face an access to justice challenge. But even if its 4 billion: that’s not a very actionable number. Thirdly: even if we had the data, there is not even any serious thinking (let alone action) going on about a systemic approach to make that justice data widely available and useable. And lastly, concerning solutions: what I see is that justice systems are generally stuck and we have not really figured out yet how to unstuck them.

Let’s go back to the two indicators above. How do they help determine whether Canada and the other UN member states are ensuring enough access to justice? I don’t see it.

There is some hope. Some organisations are working on data – with the limited means currently available. In previous columns heralded the work of the World Justice Project and Namati, for example. In my last column I sneak-previewed a HiiL report (out soon) based on surveys involving 70.000 respondents in Africa, the Middle East and Africa, and Europe.

If this affects 4 billion people the access to justice gap is BIG. It seriously affects more people than global diseases like malaria and tuberculosis.

Here’s my ask: Canada, please be the justice leader I know you to be. Help develop an effective global access to justice data effort, in coalition with others. You led the creation of the International Criminal Court. You have a solid track record of working on rule of law. You are a credible partner. You have a number of globally recognized leaders in measuring access to justice and working with data, like Ab Currie and Gillian Hadfield. Two years ago in a closed meeting at Davos I told your prime minster this. The global access to justice gap is a very serious challenge. It lies at the root of so much suffering and conflict. Two years have passed since the SDG’s were adopted. We have 13 years left on the SDG agenda. If we don’t move fast on data we can be sure Target 16.3 will not be met. Ready to talk.

Comments

  1. Canada cannot be a world “justice leader” because: (1) the majority of its population cannot afford legal services (beyond very routine legal services); (2) its law societies are not trying to solve the problem, but merely forcing the population “to live with the problem” by means of meager law society “alternative legal services”; and, (3) Canada’s law societies make impossible solving the problem because they refuse to change: (a) law society management structure from its 19th century formation; and, (b) the method by which the work is done to provide legal services so that it can produce the “economies of scale” essential for affordability. Now, it is well established that, “there are no economies-of-scale in the practice of law.” And, (4) our law societies are making no attempt to protect the market of the general practitioner from the inroads being made by the commercial producers of legal services such as, LegalZoom, LegalX, and Rocket Lawyer-see their great success in the U.S. And, (5) Canada’s governments do not call our law societies to account for such failures and refusal to fulfill the purpose of a law society in regard to access to justice.
    Compare: it would be scandalous and grossly negligent if a large utility company, having millions of customers, were managed by part-time amateurs. Law society benchers are part-time because they are practicing lawyers, and they are “amateurs” because the major problems of law societies, such as unaffordable legal services, are not legal problems. But benchers do not avail themselves of the necessary expertise because it isn’t necessary to do so because they refuse to try to solve the problem.
    As a result, Canada’s law societies are like an elected government without a civil service. And so, they cannot cope with the major problems of law societies in the 21st century. Such problems mean that it is no longer possible to be both a good lawyer and a good bencher. But our benchers make no attempt to resolve that conflict of interest. That is why the unaffordable legal services problem exists and its victims continue to grow.
    Abolish law societies or force them to change because you don’t want to serve out the rest of your legal career in a severely financially-depressed legal profession. It is a law society-caused problem, capable of a law society-caused solution. (Our law societies do not fear socialized law enough.)
    Therefore, if bencher election candidates’ campaign literature doesn’t provide a detailed strategy for solving the unaffordable legal services problem, don’t vote for them, and tell them so when you see them.
    Start by reading these articles:
    (1) “Access to Justice–Unaffordable Legal Service’s Concepts and Solutions” (SSRN, August 29, 2017, pdf.);
    Online: https://ssrn.com/abstract=2811627; and,
    (2) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, October 5, 2017, pdf.). Online: https://ssrn.com/abstract=3020489 .

  2. The justice system is not meeting the needs of Canadians.
    We are working to make it better.
    See http://justicedevelopmentgoals.ca/ to view 9 specific goals that are shaping a new approach to justice in Canada.
    To start, the justice sector is finally (but slowly) shifting to focus on people, rather than being
    driven by institutional needs.
    More effort (and money) is needed at the “front end” – where people actually recognize that one of their everyday life issues is a legal problem – rather than the courts and lawyers.
    It’s a seismic shift, but it’s taking hold.

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