Authors:Sue James
Last updated:2024-02-27
Scarcity of justice: why having so little means so much
Marc Bloomfield
Description: A Mile in My Shoes
Sue James argues that integrating legal advice with other services can help people in poverty with numerous problems that a siloed approach may miss.
‘We just can’t take everybody on, there just aren’t enough of us,’ Rosaleen Kilbane, partner at The Community Law Partnership (CLP) in Birmingham, told a packed audience in Westminster last year.1See May 2023 Legal Action 12. The event was held to mark the 10-year anniversary of that pernicious piece of legislation we know as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which (all but) eviscerated legal aid provision. Rosaleen explained how the partners at CLP took it in turns to decide which clients would be helped and who would be turned away. A ‘Sophie’s choice’ for the legal community. It wasn’t just Rosaleen, though – the story was the same from all the front-line practitioners: there is a scarcity of legal aid lawyers but an abundance of demand.
Scarcity pervades every aspect of the justice system: scarcity of free or affordable advice on legal issues; scarcity of skills and knowledge; and scarcity of funding. There are not enough judges, not enough courts, not enough legal aid lawyers. LASPO has created swathes of advice deserts and droughts across England and Wales. But we know this already.
So, what can we do?
It was by wrestling with this question that LAG, in collaboration with the Advice Services Alliance, held a conference, Scarcity and Fairness in 2024 UK, to reframe the debate on justice through a scarcity lens. Central to the theme was a book by economist Sendhil Mullainathan and psychologist Eldar Shafir: Scarcity: The True Cost of Not Having Enough (Penguin, 2014). The authors explain that scarcity forms a common chord across all of society’s major issues and has profound effects on human behaviour, emotions and thinking. If you feel that you have less time than you need, or not enough money to survive, then this requires constant vigilance and will absorb your bandwidth.
It’s easy as a professional to understand the impact of scarcity of time. I know I constantly expect too much output from too little time, and as a result it creates less room for thinking, especially creative thinking. I need a deadline to work, but as the deadline approaches, the pressure of time builds and consumes. Rethinking justice within a scarcity framework makes sense. The siloed way we deliver our legal services creates huge gaps for our clients to fall down and the single-issue approach doesn’t work for the multi-layered issues our clients face (both legal and non-legal). Complex issues require a thoughtful, joined-up response, but our current method of delivery of legal services is constrained by the funding mechanism we have, and it is just not working for our clients.
As well as falling through the gaps, our clients do not find their way to lawyers or advice services at all. Understanding why is crucial. It isn’t just about access to early advice, as Professor Lisa Whitehouse of the University of Southampton found in her research on the impact of the Overall Arrangements for Possession Proceedings,2See March 2022 Legal Action 14. which changed the block listing of such proceedings in the COVID-19 lockdown. Defendants were given an R date (or review date), essentially a number to telephone in advance of their hearing to obtain advice beforehand, which, on analysis, proved ineffectual: they simply did not take it up.
It would seem that rather than reducing volume in the system by enabling earlier advice and increasing settlement, the R date merely delayed cases progressing to a court hearing. While initial teething problems and administrative hurdles may have impacted on the success of the process in its early stages, it is the lack of occupier engagement that fundamentally undermined its ability to succeed.3Lisa Whitehouse, ‘Were “review dates” an effective part of the response to the COVID-19 pandemic in housing possession cases in England and Wales? Views from the frontline: part 2’, Journal of Housing Law, vol 25 no 3, May 2022, pages 57–62.
Exploring the reasons why forms the basis of the Professor Whitehouse’s next research project. The project (which is due to report in March 2024) involves gathering data to understand what barriers may prevent people from accessing help and advice. It will be important in understanding how people experience legal need and their legal capability.
The World Bank’s 2015 World Development Report, Mind, Society, and Behavior, found that poverty created additional cognitive burdens and financial anxiety. This restricted the space – the bandwidth – needed for people to make decisions and resolve issues. Scarcity for our clients is not just lack of money, but lack of resources, knowledge and time. It creates layers of disadvantage for the communities we work with. A scan of current headlines provides more than ample evidence of the scarcity: a new NHS dentist opening in Bristol causing people to queue for days to seek treatment;4Leigh Boobyer and Fiona Lamdin, ‘Bristol: queues for NHS dental treatment hit third day’, BBC News, 7 February 2024. 80 per cent cuts to bus routes across England and Wales reducing access to transport services.5Nyima Jobe, ‘Bus services cut by more than 80% in parts of England and Wales since 2008, finds study’, Guardian, 28 November 2023. Navigating the complexity of our siloed legal advice systems is just too hard amidst all the other scarcity.
According to the Joseph Rowntree Foundation’s UK Poverty 2024 report (23 January 2024), more of our communities (almost 6m in 2021/22) are now living in ‘very deep’ poverty with an income far below the standard poverty line. ‘It has been almost 20 years and six prime ministers since the last prolonged period of falling poverty’ is one section of the report (page 7); it describes the unprecedented rise in poverty under the Conservative government of Margaret Thatcher in the 1980s, which, to date, has not been reversed. This means that current levels of poverty are around 50 per cent higher than they were in the 1970s.
Being aware of the all-consuming deep poverty of our clients means that we can design better systems for delivery of legal advice and focus on developing new ways to reach our clients. The drive to bring law to the people, which started the law centre movement, can be reimagined in new ways through the provision of holistic services that are not constrained by the funding mechanism of our current legal aid system. We have quite a few examples to draw on from Australia and the US, and I have had the benefit of visiting these on my Churchill Fellowship.
First Step, Melbourne
On the path to First Step, you would think it was just another house on a tree-lined street. Inside, the multidisciplinary team supports people with mental health and addiction issues, many facing criminal charges. First Step’s philosophy is that complex people need complex multiple support in one place. Doctors, psychologists, nurses, therapists, care coordinators and lawyers are all under one roof and employed by the same organisation. This one-stop venue gives vulnerable people access to the support they need.
Katherine Integrated Service Provider
In Katherine, Australia, Dr Simon Quilty secured funding to trial a multidisciplinary approach for his patients to try to reduce the number of local emergency admissions, which are expensive and inefficient. Dr Quilty wanted to resolve the underlying drivers of hospitalisation, such as homelessness or inadequate housing. He invited a lawyer onto the multidisciplinary team, who, at their first team meeting, identified 15 cases where legal action (or the threat of it) could be possible. In the first year of the project, the findings showed a 50 per cent reduction in emergency hospital admissions.
Central Australian Aboriginal Family Legal Unit, Alice Springs
Located in a house on a residential street, the Alice Springs office of the Central Australian Aboriginal Family Legal Unit (it also has an office in Tennant Creek) looks and feels like home. Phynea Clarke, the organisation’s CEO, describes her lawyers as ‘quasi social workers’ who support people and work alongside their indigenous client service officers. It provides a complete package in terms of client legal and non-legal needs, attending court, Centrelink (the social security agency in Australia), housing appointments, health agencies and police stations with its clients. Sometimes, the distances to the nearest town can be hundreds of miles and clients have no transport, so the service also has its own car.
The Bronx Defenders, New York City
There is a growing recognition that clients facing criminal charges have better outcomes when a team of professionals addresses the whole range of their needs. This notion is embodied by the holistic defence model, pioneered by The Bronx Defenders in New York City. Holistic defender offices are staffed not only by criminal defence lawyers but also by civil, family and immigration practitioners, as well as social workers and non-lawyer advocates, all working collectively to resolve both the legal and non-legal issues that often play a role in driving clients into the criminal justice system. This holistic model contrasts with the traditional public defence model, which focuses almost exclusively on criminal representation.
An evaluation of the impact of holistic defence on criminal justice outcomes compared with a traditional defender (New York’s The Legal Aid Society)6James M Anderson, Maya Buenaventura and Paul Heaton, ‘The effects of holistic defence on criminal justice outcomes’, Harvard Law Review, vol 132 no 3, January 2019, pages 819–893. found as follows:
Using administrative data covering over half a million cases and a quasi-experimental research design, we estimate the causal effect of holistic defense on case outcomes on future offending. Holistic defense does not affect conviction rates, but it reduces the likelihood of a custodial sentence by 16% and expected sentence length by 24%. Over the ten-year study period, holistic defense in the Bronx resulted in nearly 1.1 million fewer days of custodial punishment.7‘The effects of holistic defence on criminal justice outcomes’, ibid, pages 820–821.
A mile in my shoes
We have become eyewitnesses to the deep poverty in our communities and it impacts on those providing services. Rosaleen told the audience in Westminster: ‘It is heartbreaking deciding which cases to take on.’ A similar sentiment was expressed by the principal dentist director in Bristol, Dr Gauri Pradhan, when the crowds of prospective patients attracted press attention: ‘It is heartbreaking that we will have to say no to some people.’8‘Bristol: queues for NHS dental treatment hit third day’, ibid. Jonathan Goldsmith, in his column for the Law Society Gazette, described the witness evidence from the criminal legal aid solicitors in The Law Society’s recent judicial review9R (Law Society of England and Wales) v Lord Chancellor [2024] EWHC 155 (Admin). as ‘heartbreaking’.10Jonathan Goldsmith, ‘If only lawyers had tractors’, Law Society Gazette, 7 February 2024. He compared the stories with those being told by the farmers standing by their tractors at a blockade outside the EU summit in Brussels.
Description: A Mile in My Shoes
Walking ‘A Mile in My Shoes’ (photo by Melanie Warner).
The lunchtime session at the Scarcity and Fairness in 2024 UK conference offered people the chance to walk ‘A Mile in My Shoes’. It’s an exhibition by the Empathy Museum in which you put on a pair of shoes and listen to the story of the person who donated them. It’s definitely worth going to see, a powerful mechanism that directly connects you with that person’s journey, and would be a perfect way to articulate the heartbreaking stories. ‘Walk a mile in my shoes across the whole justice sector’ might just be the way that we can capture the attention of the public and get them to see what we see.
1     See May 2023 Legal Action 12. »
2     See March 2022 Legal Action 14. »
4     Leigh Boobyer and Fiona Lamdin, ‘Bristol: queues for NHS dental treatment hit third day’, BBC News, 7 February 2024. »
5     Nyima Jobe, ‘Bus services cut by more than 80% in parts of England and Wales since 2008, finds study’, Guardian, 28 November 2023. »
6     James M Anderson, Maya Buenaventura and Paul Heaton, ‘The effects of holistic defence on criminal justice outcomes’, Harvard Law Review, vol 132 no 3, January 2019, pages 819–893. »
7     ‘The effects of holistic defence on criminal justice outcomes’, ibid, pages 820–821. »
8     ‘Bristol: queues for NHS dental treatment hit third day’, ibid. »
9     R (Law Society of England and Wales) v Lord Chancellor [2024] EWHC 155 (Admin)»
10     Jonathan Goldsmith, ‘If only lawyers had tractors’, Law Society Gazette, 7 February 2024. »