Curran: Maintaining the status quo is not an option
Innovation sandboxes, mandatory regulation of paralegals and new sources of funding – like interest on client accounts – are among the ideas put forward today by a report on the role of regulation to improve access to justice.
Other creative solutions include more integrated legal practice – such as health justice partnerships – and ‘emeritus lawyer’ schemes that facilitate retired lawyers taking supervisory and other roles.
The report, Regulatory Leadership on Access to Justice, was commissioned from Nottingham Law School by the Legal Services Consumer Panel in collaboration with the Legal Services Board (LSB).
It noted that as a result of the regulatory objective in the Legal Services Act 2007 of improving access to justice, legal regulators were “amongst a very few, possibly the only, entities in England and Wales with a statutory obligation” to do it.
The report pointed to research highlighting both the level of unmet legal need in England and Wales – a problem with multiple causes, including insufficient funding and a lack of trust in lawyers and the legal system – and how resolving legal issues can lead to significant improvements in health, income, housing, and employment.
The researchers said access to justice needed “greater prominence” in policy making, strategy development, operational delivery, and performance reporting, as well as a “cementing” of a professional identity across the legal professions “that embraces their broad responsibility to society”.
Their report called on the LSB and the frontline regulators to take “a proactive leadership role”, starting by revising codes of conduct to have a greater focus on access to justice.
“This could draw out an intentional and meaningful plan to inspire a balancing, or improved prioritisation, of the higher-ranking obligations of the professions.”
The regulators should also explore the creation of an access to justice innovation sandbox to test new solutions, and mandatory regulation of paralegals. This could “facilitate a broader pool of people who can work in public education and as navigators of legal processes and systems”.
Work to investigate and remove barriers to emeritus lawyer schemes – ie recruiting retired lawyers to work pro bono – could “improve supervision, retain experience and expertise, mentor young lawyers and address issues around senior staff retention and loss of knowledge and expertise”.
Further, regulators should promote integrated legal services that address barriers to access, particularly for disadvantaged groups, and explore “alternative funding streams” for access to justice work.
The latter could be interest on client accounts – used in other countries to fund legal aid and pro bono services – levying wealthy law firms, and residual funds from collective actions.
There could also be efforts to reduce costs, with the report citing the charity Law for Life negotiating lower fees for family law advice in its Affordable Advice Service.
Meanwhile, regulators should work with the insurance sector to explore the feasibility of an expansion of legal expenses insurance.
A single legal regulator may help too, although the report acknowledged this was a longer-term project.
“There is a view emerging from the front-line service agency and overseas regulator participants in this study that fragmented regulation, and the number of regulators is making it even harder to act on access to justice and diverts limited resources away from ‘real law’.
“This is perceived to lead to confusion amongst consumers, issues around data sharing, and the stifling of innovation and action. It is also seen as inefficient and a reason for a lack of coherency and cohesion. It also creates potential for confusion amongst regulators.
“However, the focus of this report is on acting now and on what can be done within the current regulatory model.”
Among the many other recommendations for action were greater collaboration across the sector to “stimulate a passion for improved access to justice which averts siloed thinking”.
Project lead Dr Liz Curran, associate professor at Nottingham Law School, said: “For too long, efforts [to ensure access to justice] have been limited to superficial fixes, failing to address a deep-rooted issue that disproportionately affects the poorest and most disadvantaged.
“Maintaining the status quo is not an option, as both statistical and qualitative data highlight the real harm caused by inaction. A creative, problem-solving, and evidence-based approach is crucial. This research report demonstrates what can be achieved and how…
“Under the leadership of the oversight regulator, the LSB, all regulators have a role to play, and collaboration across sectors is key to driving progress.”
Tom Hayhoe, chair of the Legal Services Consumer Panel, added: “This report is firmly focused on what regulators can do, because they have a statutory obligation to act – and we are convinced they have levers yet to be utilised to advance this mission.”
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