Legal Access for All: But Who Pays for It?

The target of ensuring “equal access to justice for all” is now part of the blueprint for global development—the Sustainable Development Goals—that was endorsed by the UN members last September. But what needs to be done now to make access to justice a reality for people around the world, and—above all—how do we pay for it?

For most people, accessing justice is not about going to court with a lawyer: it’s about being able to get advice and find a practical solution to a pressing problem, which may not even seem like a legal problem at the time—such as getting a name changed on an ID card, finding a solution to a property dispute with a local council or a neighbor, or getting a builder to complete work as promised. Ultimately, by resolving issues before they turn into crises, legal services play a vital role in promoting peace and prosperity.

In lower income countries, those few legal services schemes that do already exist are for the most part provided by local nongovernmental organizations, with funding from international donors, often on the basis that government will eventually be able to take over funding and administration. In some middle-income countries, notably in Ukraine and Indonesia, that is indeed happening. But if the vision of equal access to justice for all set out in the SDGs is to become a reality, more countries around the world will need to make this jump to setting up a sustainable nationwide system for legal services.

The challenge is to do so in a financially sustainable way. As part of the drive to support the global effort to promote access to justice, a report by the UK-based Law and Development Partnership, funded by Open Society Justice Initiative and Canada’s International Development Research Centre, has taken a timely look at 17 case studies in legal services provision around the world. The report, Developing a Portfolio of Financially Sustainable, Scalable Basic Legal Service Models, examines the range of ways basic legal services could be financed, looking at innovative efforts already underway around the world. The funding options explored include:

• Government financing: Beyond simply giving funds to legal services through the Ministry of Justice, governments should also examine innovative approaches to delivering services as efficiently as possible. In the United States, for instance, some legal services providers have formed relationships with existing networks of health centers to provide legal information and advice.
• Priority sector funding: The Nigerian and Indian governments, for example, have identified priority areas for finance—often education, agriculture and enterprise—and have required financial institutions and other private sector players to allocate a percentage of their profits or assets into those sectors. The justice sector could be similarly designated.
• Using social impact bonds (SIBs) to finance legal services: SIBs combine public investment with private finance to enable delivery organisations to provide services on a Payment by Results (PBR) basis. Under a PBR contract, a government pays service providers on the achievement of certain pre-agreed results. In the UK, for instance, companies tasked with prison management are paid in proportion to results on recidivism (Social Finance UK). The suitability of such funding rests on services generating a proven social benefit, susceptible to quantitative measurement, and the ability of government to pay providers for that benefit.
• Businesses can be engaged in other ways: for example Sierra Leone is adopting a new law to require businesses with large scale land investments to pay into a basket fund for legal services for affected communities [PDF].
• User funding and cooperatives: In the UK, legal cooperatives have been established, with many thousands of members paying a small fee to join up; in Holland, legal insurance is very popular; in Uganda, Microjustice for All uses a microfinance model, bringing groups of clients together to reduce fees; in Bangladesh, BRAC requests donations from those who are able to pay for legal assistance, and most are happy and able to contribute. This illustrates how there is a large market for low cost services for those who are able to pay something but cannot afford the expensive fees charged by lawyers: targeting this middle group may be a more effective business model than focusing on the poorest segments, saving scarce resources for that group.
• New philanthropic models: interest-only endowment funds have been used in Pakistan and South Africa for legal services, in which investment or bank interest is used on an ongoing basis without touching the capital.

Between public funding, philanthropy and the business sector, we need to develop more hybrid models of financing, balancing risk and improving efficiency by using several models at once.

The report pointed towards the need for greater efficiency in the provision of legal services, including stronger efforts to develop technology appropriate to low-income countries, and ideas such as enabling clients to take more control of their cases, doing much of the work themselves and only bringing in lawyers for particular elements, known as “unbundling.”

The Law and Development Partnership research sets out a five-step approach to quantifying the costs and benefits of services [PDF], by benchmarking costs against other sectors, and using this to consider to what extent services are affordable in a particular country. A key factor in this will be costing the benefit of a given service (for example, the financial cost of domestic violence over a person’s life).

Ultimately, this kind of effort will be vital to help make the case that access to justice delivers tangible development benefits for all … and in securing well-focused government, philanthropic and private sector funding and support necessary to deliver the vision set out in the SDGs.