Where has my justice gone? Current issues in access to justice in England and Wales, a new report by Dr Natalie Byrom, commissioned by the Nuffield Foundation and published on 22 April 2024, provides a helpful framework for mapping current issues in access to justice in England and Wales – but the real gold is in her identification of 47 data gaps and 80 evidence gaps.

It will be of no surprise to Legal Action readers that significant data gaps persist in the justice system. Responses to the many recent and ongoing consultations and inquiries into legal aid from Public Law Project (PLP) and others have highlighted data gaps as a major barrier to building a sustainable legal aid system. Without evidence of the scale of meaningful legal aid provider capacity and community legal need, there is a risk that ‘strategic ignorance’1Jo Wilding, ‘Beyond advice deserts: strategic ignorance and the lack of access to asylum legal advice’, Amicus Curiae, series 2, vol 3 no 3, 2022, page 472. is built into the legal aid system – an issue that the Westminster Commission,2Inquiry into the sustainability and recovery of the legal aid sector, Westminster Commission on Legal Aid, October 2021. the House of Commons Justice Committee3The future of legal aid. Third report of session 2021–22, HC 70, 27 July 2021. and, most recently, the National Audit Office4Government’s management of legal aid, HC 514, National Audit Office, 9 February 2024. have sought to address in their recommendations.

Where has my justice gone? examines what ignorance, whether strategic or not, looks like played out on the scale of the whole justice system. It offers clear direction for future monitoring and empirical research for anyone working on access to justice issues, both inside and outside government departments. All the data and evidence gaps that Byrom identifies are vitally important, but of particular interest to Legal Action readers will be those relating to ‘[a]ccess to legal information and advice’. Many gaps are striking in that there is obvious need for the data – for example, ‘[a]n agreed complete record of judgments and decisions made across the courts and tribunals in England and Wales’ (pages xiii and 67).

Among these identified gaps are four relating to the increasing use of remote means to deliver legal advice. In particular, Byrom highlights the need to better understand the impact of remote advice provision on both clients’ experiences and case outcomes, including how quality standards might be defined for advice delivered remotely. These gaps are salient because, in the context of well-evidenced and large-scale legal advice deserts, remote advice has been suggested as a potential way of tackling local under-provision in legal advice – including for immigration and asylum advice in south-west England.5See Immigration providers south west support directory, Legal Aid Agency, 1 November 2023; last updated 3 April 2024.

The empirical research on remote advice to date is valuable but largely limited to how providers experience the shift to remote delivery.6See, for example, Ceri Hutton, How the remote delivery of immigration advice evolved during Covid, Paul Hamlyn Foundation, June 2022. An important part of the story – and one highlighted by a recent Ministry of Justice report on blended advice and access to justice7Dr Jessica Mant, Dr Daniel Newman and Danielle O’Shea, Blended advice and access to justice, Ministry of Justice, 2023. – is the voice of people receiving remote advice. These people, as the report notes, ‘are not used to having their experiences taken seriously by those outside the [advice] sector’.8Ibid, page 64.

PLP, with the Helen Bamber Foundation and A&M Consultancy, is currently conducting a research project to gather some of these experiences and start to close the data gap that Byrom has identified. Through interviews and case studies, we hope to provide an initial snapshot of how people navigating the immigration and asylum system experience remote advice delivery.

We are currently conducting interviews and expect to publish our findings in full in summer 2024. One of the key themes that has arisen from our interviews so far is people’s desire for choice and agency over how they receive legal advice. Remote advice seems to work for some people in some cases, particularly if they already have a rapport with their legal representative, but it is not for everyone. As with many other parts of the immigration system, agency is vital but often lacking.

One of the key reasons that this element of choice is important is because each client will experience potential barriers to remote advice delivery differently. A 2021 report by Citizens Advice Staffordshire North and Stoke-on-Trent9Jude Hawes and Sophia Hayat Taha, Locked out: barriers to remote services, Citizens Advice Staffordshire North, October 2021. identified digital poverty, digital literacy and English language literacy as significant barriers for people seeking asylum, refugees, and migrants with no recourse to public funds. Interviewees are also sharing with us that they do not always have access to a private, quiet space where they can speak remotely with their legal representative and this can affect their ability to speak freely.

If you would like to hear more about the research or could share any case studies of people with experiences of remote immigration or asylum advice, please contact Dr Jo Hynes: j.hynes@publiclawproject.org.uk.