Investing in Justice – A Literature Review in Support of the Case for Improved Access, recently released by the Canadian Forum on Civil Justice, summarizes the “existing research and data on return on investment for justice services provided by civil society organizations, governments and private sector groups to communities and diverse populations worldwide”. (Disclosure: I sit on the Board of Directors of the CFCJ.)
Importantly, the report is concerned not only with the economic costs and benefits of providing access to (primarily civil, including family) justice, but also with the social personal ramifications.
This is not a report directed at Canada specifically, although it does refer to a number of Canadian studies (on pro bono services, dispute resolution methods in family law, legal expense insurance and restorative justice for youth). The CFCJ has already released a number of reports on access to justice in Canada, including The Cost of Justice, among others. It is also in the process of undertaking two other research studies, on Measuring the Impact of Legal Service Interventions and Community-Based Justice Research. (For a full list, see here.)
Many studies in Canada and elsewhere have shown that too many people do not have sufficient access to justice, in particular to the kind of assistance they require to prevent legal problems, to resolve their legal problems, if they arise, or to prevent legal problems making their lives worse more generally. It has long become obvious that proper legal representation is beyond even middle class people facing legal challenges, never mind those living with low income. Assistance that is provided is rarely stable; for example, even though legal aid at its best is not sufficient to provide legal assistance to the number of people who need it, it is nevertheless easily a target of government cost-cutting measures. And legal aid does not cover all areas of civil law. Other methods of providing assistance have unstable funding or rely on voluntary participation by the legal profession. As a result, both the system and the individual are challenged: self-represented litigants, even when provided with information or some assistance, are disadvantaged, the costs to the judicial system are higher, people’s legal problems increase and the impact on other areas of society becomes more onerous (for example, increased health costs).
One approach to supporting the need to increase access to justice is to stress its moral and political imperative, the right of all members of the society to equitable access to the justice system. Yet this appeal has not necessarily moved those responsible for ensuring adequate access. The CFCJ report (as does The Cost of Justice) is designed to show the actual monetary cost, including the financial savings to the system when litigants have representation, as well as less tangible costs of failing to provide access. The studies addressed in the report make the case that it is good business sense to ensure access to justice.
Thus the Investing in Justice report employs frameworks based both on return on investment (the monetary returns from investment, similar to cost-benefit analysis) (ROI) and social return on investment (focused on the social benefits of investment) (SROI). Consistent with using both frameworks, the report’s definition of “justice” and “access to justice” goes beyond procedural or dispute resolution matters:
‘Justice’ and ‘access to justice’ denote equality, morality, fairness, rights, procedural justice, understanding the language of the legal system, inclusion and participation in society, being able to afford legal help and rule of law, access to better, substantive outcomes, and ultimately access to the ‘good life’.
The report summarizes and provides data from studies about programs in several of the United States, England and Wales, Australia, South Africa, Bangladesh and Canada. The message of all the studies is the same. In England and Wales, for example, research into the extensive funding cuts for legal aid
suggests … the costs of the widening justice gap in the UK may greatly outweigh the costs of investing in civil legal aid, not solely because of the economic benefits that are generated through the provision of civil legal aid, but also because unresolved problems and self-representation result in significant economic, psychological and physical health, personal, social and temporal costs. As noted throughout this report, these negative consequences are experienced at higher rates by low income and vulnerable populations and place additional demands on judicial services and public services.
The studies also show investment is good for government. In Canada, access to pro bono services, although primarily funded through non-government sources, nevertheless resulted in considerable savings to government:
for the 2015-16 fiscal year, Pro Bono Ontario’s services produced $5.76 million … in cost savings and economic benefits from funding amounting to less than $600,000 … [and] [t]his $5.76 million in benefits and savings is the combined result of $5.16 million … in savings and benefits to governments and $0.6 million … in total savings and benefits to clients.
This is consistent with savings in other countries and through other approaches in Canada.
However, there are other benefits to the system and individuals other than the obvious financial cost benefits. For instance, the increase in funding for legal aid in New York meant fewer self-represented litigants, reduced need for welfare programs that people who have been evicted or lost their job would access and “created money within the local economy” after issues arising from financial assistance programs were addressed, even presumably, taking into account that payments out of these programs increased. These and analogous benefits appear across jurisdictions when people who otherwise are unable to afford to access to justice are able to do so.
One program unknown to me, but one I found particularly illuminating, is run by the Bangladesh Rural Advancement Committee (BRAC), a nongovernmental organization, which operates over 500 legal aid clinics. Its Human Rights and Legal Aid Services mounts programs operating as hubs to provide legal advice throughout Bangladesh. Of particular interest is BRAC’s funding model: it “is self-sustaining and generates funding primarily through its own investments and businesses, which include a roster of enterprises in areas ranging from dairy and retail clothing to birthing and delivery kits”. The income from these businesses is over $500 million, enabling BRAC, with some other assistance, such as pro bono services from lawyers, to provide its services free, except for a token fixed fee.
BRAC’s programs are also multifaceted. Thus “legal services are integrated with other services and, as such, clients can address their legal needs in conjunction with health problems, social problems and other issues that may exist in parallel with their legal problems or else are persistent within populations that BRAC serves”. BRAC also holds workshops and educates local community members who in turn can train others.
One omission the authors note that needs to be addressed in future is the importance of technology, particularly in some areas of the world, in expanding access to justice. Use of technology in improving access to justice deserves its own report, given the complexities arising from cost, the need to maintain currency, changes in platform and continuing exclusion of some people from accessing it, or at least accessing it easily and privately. Similarly, it does not address the ad hoc and sometimes erratic way we try to provide legal assistance, with myriad programs operating simultaneously without co-ordination or making best use of scarce resources.
The reality is that it is difficult to keep up with the evolving landscape of legal services, including allowing non lawyers or non paralegals to offer services or own legal service enterprises, virtual law firms, deliberately integrating trusted intermediaries into the provision of services, to cite just some examples, all of which make the claim to increase access to justice for clients in low income. These complicate the discussion of access to justice. Investing in Justice is not intended to embark on a foray into these changes, but rather to show that treating cutbacks in services is counterproductive and that providing adequate assistance, albeit taking different forms, has financial and social benefits.
Many readers of the Investing in Justice report will be familiar with the general themes underlying this compilation of cross-country studies. In many instances, the parameters of programs will remind Canadian readers of similar programs in this country. The negative impacts of denial of access to justice do not respect geographical boundaries; we in Canada see and experience them. Through its extensive detailed comparison of the cost and benefits of providing access across jurisdictions, Investing Justice reveals how adequate legal aid and other programs, far from being a cost to government or society, must be implemented in order to save costs, both financial and social.