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We Should Start Making a Business Case for Legal Aid in Canada

In countries that were early adopters of legal aid governments became major funders of legal services. This remains the case in many countries today. Funding programs that facilitate access to legal services for low-income populations was established in these years as a responsibility of the government. In nations in which the state does not accept access to justice as a government responsibility or simply cannot afford to do so, organizations with global reach, among other groups and bodies, have often stepped in to support initiatives that promote access to legal help, information, empowerment and other forms of dispute resolution. Whether funding to support access to legal services and tools originates from private donors, governments or international bodies, cost-benefit analyses can offer an impactful measure of the value and importance of investing in justice.

Traditionally, arguments in support of government funded legal aid have been made on the basis of principle; that justice should be fair and accessible to all and that a fair and an accessible justice system is an important foundation of democracy. An increasing number of studies now show that funding justice programs and services yields significant economic benefits as well as other advantages for funders and justice seekers. As the access to justice crisis persists and the justice gap in Canada and elsewhere grows, a reframing of the premise for investing in justice and in the way that we advocate for funding for justice may be necessary.

Getting buy-in for investing in increasing access to justice has been a longstanding challenge. Paraphrasing what David Luban has concluded about the U.S. context, providing equal access to legal services would take more money than governments are willing to spend on the poor (Lawyers and Justice: An Ethical Study, Princeton, 1988. p. 240). There may be a strong element of truth to that. However, governments spend far more money on social services for the poor than on legal aid. Making legal aid and access to justice sufficiently popular politically could help to attract the funding required to meet the legal needs of the public. As such, there may be strategic value in demonstrating the return on investment (ROI) for legal aid funding. An empirical cost-benefit analysis can make clear the tangible economic and social benefits of funding justice services. Early evidence from the Canadian Forum on Civil Justice (CFCJ) has already demonstrated the cost of unresolved legal problems on the public coffers in Canada.[1] Further research which highlights the significant savings and gains across a range of other sectors that result from funding justice services could help to make funding such services far more politically compelling. Additionally, applying cost-benefit analyses in this way would demonstrate the underlying reality that legal aid is connected to other aspects of the real world. Legal aid can provide lasting solutions to social problems thus resulting in cost savings for low-income earners, cost savings for other publicly-funded institutions, increases in economic activity and also have a positive ripple effect within communities.

There are some examples of governments using cost-benefit analyses to help make the case for expanding access to justice. One analysis reveals three recent instances in New York state in which legislators relied on cost-benefit analysis to increase spending for legal services. Ken Smith, Barbara Finklestein and Christopher O’Malley (Economic Impacts of Legal Aid, Management Information Exchange Journal, 2011, p. 14) state that these examples “illustrate that cost-benefit data can have the greatest power when it leverages — rather than replaces — the traditional message of unmet need for legal assistance. In each of these cases, the “economic impact story” revealed to decision makers a view of legal aid that they had never considered before: demonstrating legal aid to be a vital “engine” that produces economic stability and jobs and saves taxpayers money.” In a broader review Laura Abel and Susan Vignola state, “evidence demonstrates that civil legal aid programs bring significant amounts of funding into communities in which they operate; they increase federal, state and local revenues, reduce public expenditures and stabilize the economy.” (Economic and Other Benefits Associated with the Provision of Civil Legal Aid, Seattle Journal of Social Justice, Vol. 9, 2012, p. 141)

Similarly, there have been studies documenting the larger costs to other publicly-funded services of cuts made in legal aid spending. In the U.K., Professor Cookson showed that the costs transferred to other public services were far greater than the direct cuts to civil legal aid spending (G.D. Cookson, Unintended Consequences: The Cost of the Government’s Legal Aid Reforms, King’s College London, 2011). Notwithstanding, these additional monetary costs do not appear to have been persuasive in preventing cuts to legal aid spending.

The language of cost-benefit analysis offers a way of viewing the economic value of legal aid. The social policy view of legal aid emphasizes how legal problems are related to the larger set of everyday problems experienced by disadvantaged people and that legal services are important to the development of effective and lasting solutions to them at both the individual and structural levels. We need to undertake careful cost-benefit analysis studies on Canadian legal services and programs to gain a better understanding of the merits (financial and other) of adequately funding legal aid. The result may be a powerful nudge forward that shifts policy objectives and promotes investment in justice to save money, time and to mitigate against the negative impacts on other services.

Ab Currie, Ph.D.
Senior Research Fellow
Canadian Forum on Civil Justice

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[1] The CFCJ Everyday Legal Problems and the Cost of Justice study conservatively estimates that the legal problems experienced by the public add approximately $800 million annually to the combined costs of health care, employment insurance and social services costs in Canada. See: Trevor CW Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Costs of Justice in Canada: Overview Report, (Toronto: CFCJ, 2016) at 16, Canadian Forum on Civil Justice, online:
<http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20
and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

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