Access to justice in England and Wales is in tatters. Many of us do not consider or think of the importance of a well-oiled system and imperative access to justice for all, until we are faced with dealing with a justice system that has been deeply underfunded and tooled for the few.
Over the last few years we have witnessed legal aid being cut to the bone to the extent that it is now non-existent for all practical purposes except for a very few narrow areas of law with strict means testing that excludes many individuals. This reduction in access to justice has come into the foray in recent years with the numerous crises of the 2020s. For example, the ongoing wars causing migration influxes are resulting in much needed urgent immigration representation and the cost of living crisis is causing all manner of legal issues for individuals who need legal assistance – from denial of benefits claims to housing issues and private disputes. In the face of increased demand, supply is dwindling.
Indeed, the Law Society conducted a study and found that across England and Wales, depending on the type of legal support needed, between 42% and 90% of the population do not have access to a local legal aid provider. This is echoed by the Public Law Project, whose research showed that in the immigration space '[c]apacity is already at breaking point across the UK, even before the Illegal Migration Act. Even in London, which has the highest number of providers, one refugee charity was able to successfully refer clients in only 4.1% of 864 attempts.'
Need for legal aid decidedly outstrips eligibility and availability. The Public Law Project reports that in the immigration space in 2022 there were 'at least 25,000 more applicants for legal aid than providers had capacity to take on. This is at least a 45% deficit, and only includes main applicants (not their dependants).' This existing unmet legal need is sobering. Research from the Legal Services Board found that 3.6 million adults in England and Wales have an unmet legal need involving a dispute every year.
Unfortunately, there is little sign of improvement on the horizon. This is despite parliamentary enquiries which have raised concerns. Whilst the government is conducting a review of civil legal aid sustainability those findings will not be published until 2024. Any changes, if any at all, would not be seen until the following years. As the Law Society puts it '[t]his is too long as services are collapsing now.' The system, decidedly, needs urgent attention: not palliative care.
It is no secret that as the times become more tumultuous, it is not only individuals who require expert assistance crisis after crisis. Charities also require expert assistance, which they can ill afford, in order to navigate the complexities of employment laws, privacy regulations and intellectual property rights. And then there are the cases where important public interests are at stake, including the protection of the environment and measures to deal with the climate crisis.
It is against this backdrop that pro bono operates and looks to bridge the gap. Luckily, many law firms have vibrant pro bono practices, offering legal services at no cost to individuals and organisations who meet certain criteria. My own firm, Arnold & Porter, is rightfully proud of its long-standing commitment to pro bono work. In the US our pro bono work has ranged from acting for the victims of senator McCarthy’s anti-communist campaigns in the 1950s, to supporting Black Lives Matter against the actions of the administration of president Trump in more recent years. That tradition extends to London, where we work actively with a range of organisations and individuals to pursue cases that are often life-changing for individuals, or which assist charitable organisations, or promote important public interests such as human rights and LGBTQ+ rights.
But the pro bono space is not without its challenges. The ongoing crises, for example the cost of living or climate crisis related migration, have not only hugely increased the need for legal advice, but also affected the operating environment for those providing assistance. This is where pro bono networks in the UK are invaluable. They connect lawyers to projects in a range of areas - TrustLaw and The UK Collaborative Plan fall into this category. Pro Bono Connect is a network which focuses on pairing up counsel and solicitors to take on pro bono litigation cases. And then there are NGOs and charities with a particular focus on social change or protecting human rights, including the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), PILnet, and the Center for Reproductive Rights. Solicitors work with these organisations to assist individual’s and charities’ access to justice. Together, pro bono is bridging the gap and aiming to provide access to justice for all.
Pro bono, however, is not and should not be a substitute for legal aid. The system cannot survive on goodwill. There needs to be a serious and urgent rethinking and retooling of access to justice. However, it is clear that pro bono’s contribution is necessary now more than ever.
Kathleen Harris is partner at Arnold & Porter
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