Change is happening on access to justice. While not a new concept, the idea of improving access to justice has taken on new significance in recent years. As will be discussed at this week’s Global Week for Justice and next week’s collaborative Access to Justice Week, the work toward providing justice for all is not finished. But we are certainly moving beyond the recognition that access to justice matters and can see meaningful progress being made. Our thinking about access to justice is shifting in fundamental ways. In this piece I set out ten steps forward that have been taken, both globally and in Canada, on the way to justice for all.
Ten Steps Forward
There was a necessary although not sufficient change that involved shifting our focus from the provider — the legal system, to the user — the public. The worldwide wave of everyday legal needs research, including recent reports from Pascoe Pleasence, the OECD/Open Society Foundations and others — catalyzed by Hazel Genn’s Paths to Justice research — has been fundamental for our ability to understand what we mean by access to justice, to uncover the different ways that people experience and deal with legal problems, and to see important connections between legal problems, other problems and potential solutions. In Canada, the foundational legal needs work by Ab Currie helped the Canadian Forum on Civil Justice to develop our recent work on the Cost of Justice. The rise of Self-Represented Litigants (SRLs) as an access to justice issue, and research and attention related to that rise, has further fuelled this important shift in focus.
Once we started to look at those who use (and do not use) the system and what they need, it became increasingly clear that the gap between those who need justice and those who can access it is huge. According to the Task Force on Justice’s recent Justice for All report, 5.1 billion people “lack meaningful access to justice.” Acknowledging a problem is an important part of finding solutions.
What we mean by ‘access to justice’ has become an increasingly contested and interesting discussion. There is no doubt that we at least mean access to courts and lawyers. However, what I found through our “What is Access to Justice?” research is that, when asking the public what they want, people aren’t ultimately hoping for more courts or more lawyers; rather, what they are really looking for — in essence — is some version of the good life. How far we move toward what amounts to substantive, engaged and reflective justice is still an open question. As seen by recent discussions, like the work of Rebecca Sandefur and others, at least we are having the discussion.
That change is needed in the justice sector is not exactly a ground breaking revelation. Charles Dickens was not the first nor the last person to mock the state of the justice system. We have discussed this for years. However, linking innovation in justice to more general human-centered design thinking and reform has catalyzed a new kind of interest — and opportunity — in justice innovation in Canada and around the world, involving public, private and hybrid initiatives. Hiil has been encouraging this kind of innovation for some time. British Columbia’s Civil Resolution Tribunal and the work of the Labratoire de Cyberjustice, the Legal Innovation Zone, the Access to Justice Centre for Excellence, CREATE Justice, the Winkler Institute for Dispute Resolution and CLEO are but several Canadian examples. Law Societies are also starting to think seriously about the importance of future changes and innovations in legal services and legal regulation, as animated by the work of Richard Susskind, Gillian Hadfield and others. Much can be done to bridge the gap between those who need legal services and those who can provide legal services, including properly supporting those who need legal information (perhaps with some technology-based or in-person assistance) and those who need a lawyer. Having said all of that, as I have argued elsewhere, it will be important to identify and maintain core aspects of what is important about our systems of public justice in order to protect important rule of law and justice values as we move forward with innovations and reforms. Put differently, we need to be careful not to ‘throw the baby out with the bathwater’.
There is no doubt that the world-wide collaboration that has increased over the past decade has made a big difference in terms of access to justice attention, momentum and action. One only needs to look as far as this year’s Global Week for Justice for a flavour of this collaborative effort. Canada’s Action Committee on Access to Justice in Civil and Family Matters and its Justice Development Goals provide local examples of this important recognition. We’re learning, supporting, building on and starting to align our collective efforts.
It is now increasingly accepted — by international organizations (e.g. the UN, OECD and World Bank), governments (e.g. Canada’s federal Department of Justice and its Access to Justice Secretariat), Crown corporations (e.g. IDRC), non-governmental organizations (e.g. World Justice Project, Hiil, Namati, Pathfinders, Open Society Foundations, Law and Justice Foundation of New South Wales, Canadian Forum on Civil Justice, etc.), bar associations (e.g. the Canadian Bar Association), research and other coalitions (e.g. the CBJR project, ILAG and Canada’s Action Committee on Access to Justice in Civil and Family Matters), among many others — that providing people with meaningful access to justice is good for individual wellbeing, commercial prosperity, investor confidence as well as sustainable collective development.
7. Government Buy-In.
Although no credible opposition is raised to the importance of access to justice for development, there generally continues to be a lack of adequate government buy-in. Justice budgets continue to be inadequate in terms of meeting even the most basic justice needs. From the work of the OECD and World Justice Project, Hiil, Pathfinders, World Bank, and Lisa Moore and me, the business case is being made. However, a significant lack of resources still exists. Having said that, there are some new signs of important governmental recognition. For example, in Canada, leaders from various governments and parties are starting to say out loud that our system of justice “has failed,” that we need to “reimagine a system of justice,” that “change is needed all over the place,” and that “comprehensive action” is required. The federal Department of Justice has recently become increasingly engaged, which is important. Although provincial justice budgets are still too low to meet basic needs, Canada’s legal aid plans continue to provide excellent services (to those who can access them). As evidenced by the Global Week for Justice, some top-down momentum is happening around the world. Mobilizing that government interest, and the buy-in and resources that need to follow, is an important element of meaningful change.
We know that justice matters to people. In my small Canadian “What is Access to Justice?” survey, 97% of respondents indicated that people should “have a right to justice” and 76% indicated that “justice is of fundamental importance” (with another 23% providing more mixed answers, and only 1% saying it is not). However, until those people put more pressure on their government representatives — until access to justice becomes a coffee shop, book club, dinner table, Zoom meeting and ultimately a voting discussion — meaningful change is not going to happen. At the moment, health, education, policing, the environment, privacy, security, etc., continue to dominate our public consciousness. In turn, those issues dominate Cabinet and Ministerial mandates and budgets. Justice (and not only criminal law) needs to join those topics in order to move the dial on meaningful access to justice. Public legal education — at all levels — will help with this step.
The global COVID-19 pandemic has brought more change in the past six months than perhaps has occurred in the past 60 years. A lot has been happening. Governments, courts, lawyers, law schools — everyone — has had to adapt, and adapt quickly. Willingness, imagination and money have all been available. Not only is this result mostly a good news story coming out of a terrible world event, it also shows that change can happen. We also need to recognize that other — different — crises have happened in the past and continue to occur all around us. One only needs to look at the work of Canada’s Truth and Reconciliation Commission or the National Inquiry into Missing and Murdered Indigenous Women and Girls, the ongoing work of the Black Lives Matter movement, or the climate crisis to see that we are surrounded by inequity, violence, racism, and ultimately a lack of meaningful justice for all. Crises help to focus attention and catalyze action. However, we should not need to wait for the next crisis, or miss those around us, before further change occurs.
It has become increasingly well accepted that data is a necessary asset for driving change. With a growing body of access to justice research, we are now at the stage of getting to the next steps of focussing on different kinds, areas and ways of scaling data to help better understand the costs, benefits, value and complexities of access to justice. A recent example is our new book, The Justice Crisis: The Cost and Value of Accessing Law. Topics and findings in this collection focus on: price, cost and regulatory reform; performance and benchmark indicators; public spending; individual and state-based costs; access to justice and Indigenous communities; domestic violence; paralegals; family law; class actions; social enterprise and innovation; legal fees and contingency fees; client interests and risk analysis, among others. The research methodologies used in this collection are innovative and exciting. Equally important is the fact that a new generation of scholars and researchers is starting to emerge alongside those who have been doing this work for a while. Generating new ideas, voices and ways of thinking, as well as sustaining future access to justice research agendas, is an important part of this work. We need to keep moving forward, particularly as we try to evaluate the impact of legal services on peoples’ lives, in order to understand whether in fact better access to justice — and ultimately justice for all — is being achieved.
Although I am generally an optimistic person, looking around at the world’s political, economic, social, health and climate situation, it is hard to avoid thinking that ‘Rome is burning’. It is also hard to say, as evidenced by the findings in the Justice for All report, that the situation when it comes to access to justice is that much better. However, given the steps toward progress that I have discussed above, I do think there is reason for hope.
In addition to those ten steps, there may be more or different steps — I’d be happy to be corrected. The important thing is that we learn from the past, recognize what’s happening now and find ways to break free from inaction in order for meaningful change to flourish. The real test of progress will be whether peoples’ lives improve in a meaningful way. I hope what we are now seeing will lead to that improvement.
 Note: I am grateful for comments from Mark Benton, Ab Currie, Maaike de Langen and Janet McIntyre.