1. PURPOSE, BACKGROUND AND METHODS
1.1 The purpose of this paper is to present existing evidence on the prevalence and nature of problems or events for which a legal remedy is available (variously called civil law, civil legal, civil justice, civil and social justice or justiciable problems) in Scotland, how people behave when faced with these problems and the outcomes. The aim of this is to provide context and where possible a baseline for forthcoming analysis of the Scottish Crime and Justice Survey ( SCJS): Civil Justice Module.
1.2 The SCJS: Civil Justice Module will produce information on the prevalence and nature of civil law problems or events, the resolution rates for such problems, whether the problems were resolved with or without help or advice from a third party, who the third party was, and satisfaction with the resolution. For those who did not attempt to seek a resolution for their problems (variously referred to as lumpers or abstainers) the survey asks for the reason behind this behaviour.
1.3 The data presented as the baseline is drawn from a synthesis of the findings of four surveys on civil law problems between 1997-2004.
1.4 A feature of previous research on civil legal need in Scotland is to compare findings across jurisdictions, most usually comparing with England and Wales. This paper focuses on the Scottish context, and does not make such comparisons.
Policy background and use
1.5 Two recent events have highlighted the continuing importance of resolution of civil law problems or disputes in Scotland. A wide ranging review of the civil justice system in Scotland undertaken by Lord Gill 1 made recommendations to address, among other things, access to justice issues including public legal education and advice services for those faced with civil law problems. Further, the economic downturn and following recession which began in the final quarter of 2008 have raised concerns that civil law problems including those relating to employment, housing and money and debt are increasing and may therefore increase the need for civil law information and advice services.
1.6 Knowing accurate levels of and trends in prevalence and outcomes of civil law problems and behaviour of those faced with them is useful, as these things go part way to understanding civil legal need, and together with other data can be useful indicators of National Outcome 15 - Our public services are high quality, continually improving, efficient and responsive to local people's needs; National Outcome 11 - We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others; and National Outcome 7 - We have tackled significant inequalities in Scottish society.
1.7 Having accurate data on the prevalence and nature of problems, alongside other information, can help with the planning of service provision. And data on behaviours and outcomes in terms of problems left unresolved can help us in the targeting of services to problem types and demographic groups.
1.8 However, it should be recognised that data on prevalence, aggregated data on behaviours and outcomes only tell us part of the story. Prevalence tells us about the beginning, the existence of problems in the first place and outcomes tell us the end, the resolution rates for problems. But key to understanding legal need in Scotland happens in between these two things, in the advice seeking behaviour and pathways of those with civil law problems. Aggregated survey data on advice seeking behaviour which will be produced by the SCJS Civil Justice Module will allow us to count those who seek advice and from whom and the reasons why those who did not seek advice did not but will not tell us the full details of the pathway from problem to resolution. For example the extent to which people tried to solve the problems themselves before seeking advice or why some people fail in an attempt to get advice and at that point decide to 'lump' or 'self help'. Only by exploring in-depth the advice seeking pathways of those with civil law problems can we understand levels of expressed need (see paragraphs 1.9-1.14), where unmet need exists, and why. And finding the reasons for needs being unmet would be the way forward to match services to needs.
Legal needs studies background
1.9 The definition of 'legal need' will help us navigate the similarities, differences and gaps in the data provided by the four surveys which this paper examines.
1.10 A recent literature review of legal need prepared for the Northern Ireland Legal Service Commission 2 sets out a taxonomy for needs assessment. This comprises of:
- Normative need. Essentially a set of 'everyday' problems specified by the researcher, encompassing an appropriate threshold level of seriousness and a policy-relevant reference period.
- Felt need. The incidence of justiciable events, adjusted for the capability of solving problems through the individual's own means.
- Expressed need. Defined on the basis of actions taken and/or advice sought.
- Comparative need. Social need and equality indicators to facilitate a mapping from social need to legal need. 3
1.11 In other words, 'normative' need is legal needs as defined by policymakers and/or researchers; 'felt' need is the level of need found by legal needs surveys; 'expressed' need is where some attempt is made to satisfy a felt need, i.e. by seeking advice or assistance; and comparative need is the link between social and legal needs.
1.12 This paper will examine the first two of these four types, or aspects, of legal need in the findings of the four Scottish surveys in question, looking particularly at felt need. Although aggregated data cannot fully capture expressed need, as in advice seeking behaviour, we will touch on this in order to provide a baseline for the data on advice seeking behaviour that will be captured by the SCJS module. Full understanding of expressed need is beyond the scope of this paper.
1.13 This paper will also examine the outcomes of civil law problems in Scotland based on the findings of the two surveys which examined this.
1.14 A significant amount of evidence on prevalence, behaviour and outcomes of civil law problems is available from four surveys undertaken in Scotland, of which 2 are national (covering all of Scotland) and 2 are local, covering several local areas. Although the national evidence is ageing and the local evidence is not generalisable to the population there is value in synthesising the findings in an attempt to track patterns over the period. The four surveys are as follows:
- SCC survey - Civil Disputes in Scotland (Scottish Consumer Council 1997)
- Paths to Justicesurvey - Paths to Justice (Genn and Paterson 2001)
- Microcosm survey - The Public Perspective on Accessing Legal Advice and Information: A Microcosm Study (Scottish Executive 2001)
- Assessing Need survey - Assessing Need for Legal Advice in Scotland (Scottish Executive 2004)
A full description of these surveys is set out in the technical annex.
1.15 The most well known and by far the most comprehensive of the four studies was Paths to Justice (Genn and Paterson 2001). This seminal piece of work laid the foundations of how we view the prevalence of civil law problems in Scotland and how people behave when faced with these problems. The key problem with using Paths to Justice for our current purposes is that the data it reported on is, at the time of writing, ten years old, and, by their very nature, the prevalence of civil law problems may vary over the medium to long term. The one other national survey among the four, the Scottish Consumer Council survey, is older still than Paths to Justice (13 years at the time of writing) and the other two surveys are more recent but are local area surveys, and as such are not representative of Scotland as a whole.
1.16 A full note of methods and the technical difficulties in synthesising the data from the surveys is attached in an annex to this paper. In summary, in some cases the surveys had different sampling frames, different sampling methods, different timeframes, different question wording and different problem categories. Therefore numerical synthesis or meta-analysis is not possible. However, all the studies have high quality robust findings for their particular populations, as such it is reasonable to perform narrative synthesis of their results, which refer to ranges of numbers and percentages, and highlight specific differences between surveys where they may impact the findings. The findings should be read with these data issues in mind.
1.17 Further evidence on civil law issues is now being collected in the Scottish Crime and Justice Survey ( SCJS). It is an annual rolling survey of a representative sample of the Scottish population. At the time of writing two year's fieldwork has been completed - from April to April 2008/9 and 2009/10 achieving circa 8,000 and circa 4,000 interviews respectively - the 2010/11 fieldwork is ongoing. Initial analysis of the results of the 2008/9 and the 2009/10 surveys have been undertaken and published 4. The survey's civil justice module is intended to fill some of the gaps in evidence on civil legal need. The module comprises comprehensive questions on the prevalence of civil law problems and in 2008/9 some limited questions on assistance seeking behaviours of people with such problems, and on problem outcomes. The 2009/10 survey questions were similar with the addition of questions on where or to whom the respondents went for help and advice and if they did not seek or access help or advice then why not. The addition of these questions produces some information on advice seeking behaviour and unmet need (for example what types of people do not seek help and advice because they don't know where to find it), however to conduct a full analysis of advice seeking behaviour and unmet need, in-depth research on these issues would be necessary.