Is Access to Justice Being Weakened by Court Backlogs, Legal Aid Pressures and Digital Exclusion?

Introduction: The Structural Erosion of a Constitutional Principle

Access to justice is not merely a procedural convenience; it is a constitutional principle fundamental to the rule of law. As Lord Bingham observed, the rule of law requires that the state provide means for the resolution of disputes which individuals cannot themselves resolve without unreasonable cost or delay (Bingham, 2010, p. 85). Article 6 of the European Convention on Human Rights guarantees the right to a fair hearing within a reasonable time, a standard given domestic legal force by the Human Rights Act 1998. The common law has long recognised access to the courts as a constitutional right: in R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court struck down employment tribunal fees precisely because they rendered rights practically unenforceable, with Lord Reed affirming that courts exist to ensure that the laws created by Parliament and the courts are applied and enforced. These principles supply the evaluative standard against which the question must be tested.

This essay argues that access to justice in England and Wales is being weakened — not by any single cause but by the cumulative interaction of three distinct yet interconnected pressures: chronic court backlogs that delay the resolution of disputes beyond reasonable limits; sustained contraction of legal aid that excludes significant categories of litigant from professional representation; and a programme of court digitalisation that, while potentially efficiency-enhancing, excludes vulnerable populations who cannot meaningfully participate in online proceedings. Critically, these three pressures do not operate in isolation. Legal aid cuts increase the number of litigants in person, who navigate court processes more slowly, thereby worsening backlogs; digitalisation designed to reduce backlogs simultaneously creates new barriers for those already most disadvantaged by legal aid withdrawal. The thesis advanced is that while each pressure alone would strain the system, their convergence produces a structural deficit in access to justice that existing reform efforts have not adequately addressed.

I. Court Backlogs: Delay as a Denial of Justice

The principle that justice delayed is justice denied, though often repeated, carries genuine doctrinal weight. Article 6(1) ECHR requires that civil and criminal proceedings be concluded within a “reasonable time.” The European Court of Human Rights has repeatedly held that systemic delays attributable to inadequate resourcing of the court system cannot be excused by reference to budgetary constraints (Zimmerman and Steiner v Switzerland (1983) 6 EHRR 17). In England and Wales, the scale of current backlogs raises serious questions about whether this standard is being met.

In the Crown Court, the outstanding caseload stood at approximately 67,500 cases as of early 2024, a figure that had risen sharply from around 39,000 before the COVID-19 pandemic (HM Courts & Tribunals Service, 2024). Importantly, the backlog was already growing before the pandemic: between 2019 and March 2020, Crown Court sitting days had been reduced as a result of resource constraints (National Audit Office, 2021). The pandemic accelerated a pre-existing trajectory. In the magistrates’ courts, the outstanding caseload similarly ballooned, although recovery there has been somewhat faster. In the family courts, the mean duration of care proceedings exceeded 45 weeks, substantially above the 26-week statutory target established by section 14(2) of the Children and Families Act 2014 (Family Court Statistics Quarterly, 2023). In the civil courts, county court cases involving small claims and multi-track disputes have experienced lengthened waiting times, with the median time from issue to trial increasing significantly over the period since 2019.

These figures are not merely administrative inconveniences. In criminal proceedings, delay means that defendants who may be innocent spend extended periods on bail with conditions restricting their liberty, or in custody awaiting trial. Victims and witnesses must sustain their willingness to participate in proceedings over months or years, during which time recollection degrades and the personal toll of unresolved proceedings deepens. The Crown Prosecution Service has acknowledged that witness attrition — where witnesses disengage or become unavailable — is exacerbated by delay, weakening the prosecution’s ability to secure convictions in meritorious cases (House of Commons Justice Committee, 2022). In family cases, delay in care proceedings directly harms children whose welfare the court exists to protect: the 26-week target in the Children and Families Act 2014 was introduced precisely because research demonstrated that prolonged uncertainty about placement causes developmental harm (Munby, 2014).

The causes of the backlog are multifactorial but substantially traceable to resourcing decisions. Between 2010 and 2019, the Ministry of Justice’s budget was reduced by approximately 40 per cent in real terms (Institute for Government, 2023). Court closures reduced the physical estate: over 260 courts closed between 2010 and 2020, concentrating caseloads on fewer venues and increasing geographic barriers to attendance (Bach Commission, 2017). Judicial recruitment has not kept pace with demand, and there have been persistent difficulties in recruiting and retaining recorders and circuit judges, particularly in crime (House of Lords Constitution Committee, 2021). The government allocated additional sitting days in 2021–2023, but the National Audit Office found that recovery remained insufficient because the additional capacity was offset by the continuing inflow of new cases and the complexity of cases that had been delayed (National Audit Office, 2021).

The difficulty with attributing the backlog solely to the pandemic is that it obscures longer-term structural underinvestment. Genn (2010) argued over a decade ago that the English civil justice system was experiencing a form of managed decline, in which successive governments treated courts as a cost centre rather than as essential constitutional infrastructure. The pandemic was a catalyst, but the vulnerability of the system to disruption was itself a consequence of prior policy choices. Accordingly, the backlog represents not a temporary aberration but a symptom of sustained under-resourcing that weakens access to justice in a manner that engages the state’s obligations under Article 6 ECHR and the common law right of access to the courts.

II. Legal Aid: The Consequences of Sustained Contraction

Legal aid is the principal mechanism through which the state attempts to ensure that access to justice does not depend on personal wealth. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) represented the most significant contraction of legal aid since the scheme’s modern inception. LASPO removed entire categories of law from the scope of civil legal aid, including most private family law, most housing matters (except those involving the risk of homelessness), most employment law, most debt matters, and most welfare benefits disputes. The effect was immediate and substantial: the number of civil legal aid cases fell from approximately 925,000 in 2012 to approximately 497,000 in 2013–14, and continued to decline thereafter (Ministry of Justice, 2019).

The rationale for LASPO, as articulated in the government’s consultation paper Proposals for the Reform of Legal Aid in England and Wales (Ministry of Justice, 2010), was to focus limited resources on the most serious cases, to discourage unnecessary litigation, and to encourage alternative dispute resolution. However, the evidence accumulated since LASPO’s enactment undermines these justifications. The Ministry of Justice’s own post-implementation review, published in 2019, acknowledged that the reforms had created significant gaps in access to justice, particularly for litigants in person who struggled to navigate the legal system without professional assistance (Ministry of Justice, 2019, para. 5.4). The review found, for example, that the removal of legal aid from early legal advice in housing, debt and welfare benefits cases often resulted in problems escalating to a point where more expensive legal intervention — or none at all — was required.

The exceptional case funding (ECF) mechanism under section 10 of LASPO, intended to provide a safety net for cases where failure to provide legal aid would breach the individual’s Convention rights or enforceable EU rights, has been widely criticised as inadequate. In Gudanaviciene v Director of Legal Aid Casework [2014] EWCA Civ 1622, the Court of Appeal held that the Lord Chancellor’s guidance on ECF had been applied too restrictively. Nevertheless, the volume of successful ECF applications has remained low relative to the scale of need, with the Legal Aid Agency’s own statistics showing that only a small fraction of applicants receive funding (Legal Aid Agency, 2023).

The consequence of legal aid withdrawal for family law is particularly severe. Private family law — including disputes over child arrangements and financial matters following divorce — was taken largely out of scope by LASPO. The government expected that mediation would fill the gap, but take-up of mediation declined substantially after the reforms, in part because the initial legal advice session that often directed parties to mediation was itself defunded (National Audit Office, 2014). The resulting increase in litigants in person in family proceedings has been extensively documented. Research by Trinder et al. (2014) found that litigants in person in family cases faced significant difficulties in understanding procedure, identifying relevant legal issues, presenting evidence, and cross-examining witnesses — a finding that led ultimately to the prohibition on direct cross-examination in certain circumstances by section 65 of the Domestic Abuse Act 2021.

The means test and merits test for remaining legal aid eligibility have also attracted criticism. The means test thresholds have not kept pace with inflation or the rising cost of living, with the result that many individuals who are financially unable to afford private legal representation are also ineligible for legal aid (Law Society, 2023). The Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2023, which raised the disposable income threshold, were welcomed as a step forward but characterised by practitioners as insufficient to restore meaningful access to the scheme (Law Society, 2023).

From a theoretical perspective, the contraction of legal aid raises fundamental questions about the relationship between formal and substantive access to justice. Cappelletti and Garth (1978) distinguished between formal access — the existence of legal rights and court processes — and effective access, which requires that individuals be practically able to enforce their rights. LASPO’s effect has been to widen this gap. The right to apply to the family court for a child arrangements order, for instance, remains formally available, but for an unrepresented litigant with limited education and no legal knowledge, the right is practically hollow. Ewing (2017) has argued that the LASPO reforms reflected a conception of access to justice as a commodity rather than a public good, subordinating the constitutional importance of legal representation to fiscal austerity. While this characterisation may be contested — successive governments have maintained that legal aid spending must be sustainable — the weight of evidence supports the conclusion that legal aid contraction has materially weakened the ability of individuals to vindicate their legal rights.

III. Digital Exclusion: Efficiency at the Cost of Participation

Since 2016, HM Courts & Tribunals Service (HMCTS) has pursued a substantial programme of court reform under the banner of digital modernisation, now involving expenditure exceeding £1 billion (HMCTS, 2023). The programme encompasses online applications for divorce (introduced through the online divorce portal), online civil money claims (through the Online Civil Money Claims service), digital case management in the tax tribunals, and video hearings across multiple jurisdictions, the use of which accelerated dramatically during the pandemic. The ambition is to create a system where many court processes can be initiated, managed and resolved online, reducing reliance on physical court attendance and paper-based procedures.

In principle, digitalisation can enhance access to justice. For users who are confident with technology, online systems reduce the need for travel — particularly significant following the closure of local court buildings — and can streamline straightforward processes. The online divorce application, for example, has been associated with a reduction in application errors compared with paper forms, suggesting that well-designed digital interfaces can improve user experience for some litigants (HMCTS, 2021).

However, the access-to-justice benefits of digitalisation depend critically on who is able to use the digital systems. The concept of digital exclusion refers to the inability of certain populations to access, use or benefit from digital technologies. This may result from lack of internet access, lack of digital skills, cognitive or physical disability, language barriers, low literacy, poverty, or age. The Office for National Statistics estimated that in 2021, approximately 6 per cent of UK adults — around 2.7 million people — had either never used the internet or had not used it in the previous three months (ONS, 2021). Among older adults, those with disabilities, those in social housing and those on low incomes, the rate was substantially higher. Lloyds Bank’s Consumer Digital Index has consistently shown that the populations most likely to need court services — those experiencing debt, housing, welfare and family problems — are also the populations most likely to lack digital skills (Lloyds Bank, 2022).

This creates a paradox. The groups most affected by legal aid withdrawal — who now must navigate the system without professional assistance — are also the groups least able to benefit from digital tools designed to make self-representation easier. The Public Law Project (2019) has documented specific barriers: individuals may be unable to upload documents in the required format, may lack the data allowance to participate in video hearings, may be unable to engage meaningfully in proceedings conducted via a screen due to cognitive disabilities, or may simply not possess the hardware needed to access online systems. Byrom (2019) found that many litigants in person experienced digital court processes as alienating and confusing, particularly where the system assumed a level of legal literacy that unrepresented users did not possess.

The legal implications of digital exclusion are significant. If a litigant is unable to access an online system and no adequate alternative is provided, the result may engage Article 6 ECHR and the common law right of access to the courts. In R (UNISON) v Lord Chancellor [2017] UKSC 51, Lord Reed made clear that practical barriers to access — not only formal prohibitions — could amount to an unlawful denial of access to justice. While HMCTS has maintained that paper-based and telephone alternatives remain available for those who cannot use digital systems, the adequacy of these alternatives has been questioned. The Senior President of Tribunals, Sir Ernest Ryder, noted in his annual report that digital systems must include meaningful assisted digital support for those who cannot engage with technology independently (Ryder, 2019). The Justice Committee’s report on court modernisation expressed concern that assisted digital provision was insufficiently resourced and inconsistently available (House of Commons Justice Committee, 2019).

Moreover, the shift to remote hearings raises distinct issues of procedural fairness. Video hearings require participants to have adequate broadband, a suitable device, a quiet and private space, and the technical confidence to manage video software. Research by Rossner and McCurdy (2020) found that video hearings could undermine the perceived legitimacy of proceedings and reduce the ability of participants to communicate effectively, particularly in cases involving vulnerable individuals. While the Coronavirus Act 2020 and associated practice directions provided emergency authority for remote hearings, the longer-term normalisation of video proceedings without robust evaluation of their impact on fairness is a legitimate concern. The Senior President of Tribunals has acknowledged that a “one size fits all” approach to remote hearings is inappropriate and that the decision to hold a hearing remotely must be sensitive to the needs of the parties (Practice Direction: Contingency Arrangements in the First-tier Tribunal and Upper Tribunal, 2020).

The risk, therefore, is that digitalisation creates a two-tier system: one in which digitally confident users benefit from more convenient processes, and another in which those who are already disadvantaged face additional barriers. This outcome would represent a transfer of the costs of efficiency from the state to the most vulnerable litigants, a result that is difficult to reconcile with the constitutional function of the courts.

IV. The Cumulative Effect: Interconnected Pressures and Systemic Failure

The most analytically significant point is that these three pressures do not operate independently. Their interaction produces effects greater than any single factor alone. This section identifies three critical feedback loops.

First, legal aid cuts increase the number of litigants in person, and litigants in person contribute to court delay. Research consistently shows that hearings involving unrepresented parties take longer than those involving represented parties, because judges must spend additional time explaining procedure, assisting litigants to formulate their cases, and managing proceedings that might otherwise be streamlined by professional advocates (Moorhead and Sefton, 2005). The Judicial Working Group on Litigants in Person (2013) found that the increase in self-representation was placing significant additional burdens on the judiciary. Thus, the cost saving achieved by reducing legal aid expenditure is partially offset by the additional court time required to manage unrepresented litigants, a dynamic that the National Audit Office (2014) described as a cost-shifting exercise rather than a genuine efficiency gain.

Second, digitalisation was intended in part to reduce backlogs, but where digital systems exclude vulnerable users, those users require additional assisted digital support, telephone access or in-person attendance — resources that are already strained by court closures and staff reductions. The promise that digital systems would release capacity is therefore only partially fulfilled, and the residual demand for non-digital access may be underfunded precisely because the system is designed on the assumption that most users will engage digitally.

Third, the combined effect of these pressures falls disproportionately on particular social groups. Low-income individuals, those with disabilities, older people, individuals for whom English is not a first language, and those experiencing domestic abuse are more likely to require court services, more likely to be ineligible for legal aid, less likely to be able to afford private representation, more likely to face digital barriers, and more likely to suffer harm from delay. The Equality and Human Rights Commission (2018) found that the LASPO reforms had a disproportionate impact on women, disabled people and ethnic minorities, engaging the state’s obligations under the public sector equality duty in section 149 of the Equality Act 2010. The intersection of these pressures with protected characteristics deepens the concern that the justice system is failing its constitutional function for those who most need its protection.

The broader consequence is a form of access-to-justice rationing in which practical availability of legal remedies depends increasingly on the resources, skills and characteristics of the individual litigant rather than on the merits of their case. This is the antithesis of the principle expressed by Lord Reed in UNISON, that the value of the right of access to the courts is not confined to cases involving large amounts of money, but extends to vindicating rights at whatever level they arise. The cumulative effect of backlogs, legal aid pressures and digital exclusion is to create a system in which the formal availability of rights coexists with the practical inability of many individuals to enforce them.

V. Reform Initiatives and Their Limits

It would be inaccurate to suggest that no efforts have been made to address these pressures. The government has increased Crown Court sitting days, raised some legal aid means test thresholds, expanded the scope of legal aid for certain immigration and housing matters, and invested in the HMCTS reform programme. The Legal Aid Agency has taken steps to improve the ECF application process. HMCTS has committed to providing assisted digital support and maintaining non-digital channels.

However, these reforms have been criticised as insufficient in scale and ambition. The Bach Commission (2017), an independent review of access to justice, recommended the enactment of a statutory right to justice guaranteeing legal aid for individuals who would suffer a substantial negative impact on their ability to participate in society if denied assistance. This recommendation has not been implemented. The Law Society (2023) has called for a comprehensive review of legal aid eligibility and scope, arguing that incremental adjustments to means test thresholds are inadequate to address the structural access deficit created by LASPO. The Westminster Commission on Legal Aid (2021) similarly recommended restoring early legal advice in social welfare law — housing, debt and welfare benefits — on the basis that early intervention reduces overall cost by preventing problems from escalating.

Regarding court backlogs, the House of Commons Justice Committee (2022) recommended a long-term strategy for Crown Court capacity that goes beyond short-term allocations of additional sitting days. The Committee noted that simply adding sitting days without addressing the underlying causes of delay — including insufficient judicial recruitment, inadequate court infrastructure and the increasing complexity of cases — would not achieve sustainable recovery. The Leveson Review of Efficiency in Criminal Proceedings (2015) had already identified many of the same problems, suggesting that the failure to address them is not principally one of diagnosis but of sustained political will and resource allocation.

Regarding digital exclusion, the Justice Committee (2019) recommended that HMCTS adopt a principle of “digital by default, but not digital only,” ensuring that non-digital access is treated as a permanent feature of the court system rather than a temporary concession. The challenge is that maintaining parallel digital and non-digital systems is inherently more expensive than a purely digital system, and there is a risk that as budgets are squeezed, the non-digital alternative degrades. Byrom (2019) has argued that meaningful evaluation of the impact of digital processes on access to justice must be built into the reform programme, rather than treated as an afterthought.

The fundamental tension is between fiscal constraint and constitutional obligation. Successive governments have treated the justice system as a candidate for efficiency savings in the same manner as other public services. Yet the justice system differs from other services in a constitutionally significant way: it is the mechanism through which legal rights — including rights against the state itself — are enforced. As Lord Reed stated in UNISON, without the practical ability to access the courts, rights become merely aspirational. The question is therefore not merely whether current reform efforts are improving the position at the margin, but whether they are sufficient to discharge the state’s constitutional and Convention obligations to provide effective access to justice.

VI. Evaluating the Competing Perspectives

There are those who would resist the characterisation advanced in this essay. Government ministers have argued that the justice system is being modernised, that legal aid spending remains substantial (approximately £1.7 billion per annum as of 2023–24), and that digitalisation will ultimately improve access by making court processes simpler and more convenient. On this view, the transition is painful but ultimately beneficial, and the appropriate response is to accelerate reform rather than reverse it.

This argument has some force in relation to digitalisation specifically. It is plausible that, in the long term, well-designed digital systems with adequate support mechanisms could improve access for the majority of court users. The success of the online divorce portal in reducing form-rejection rates provides limited but genuine evidence that digital processes can be more user-friendly than their paper-based predecessors (HMCTS, 2021). Moreover, the argument that all public services are subject to fiscal constraints is not unreasonable; the question is one of degree and proportionality.

Nevertheless, the government’s position is weakened by several considerations. First, the evidence of harm is substantial and well-documented, not merely by advocacy organisations but by the government’s own post-implementation review of LASPO (Ministry of Justice, 2019), the National Audit Office (2014; 2021), and successive parliamentary committees. Second, the claim that legal aid expenditure remains high obscures the fact that spending has fallen in real terms and that the scope of the scheme has been drastically narrowed. Third, the argument that digitalisation will improve access in the long run does not address the needs of those who are excluded now, nor the absence of robust evidence that current digital systems adequately serve vulnerable users. Fourth, the constitutional dimension of the issue distinguishes the justice system from services where fiscal trade-offs may be more straightforwardly appropriate. The state has a positive obligation under Article 6 ECHR and the common law to provide effective means of dispute resolution, and this obligation is not suspended during periods of fiscal austerity.

A more nuanced critique might argue that the real problem is not austerity per se but prioritisation. The political salience of the justice system is low: court users — particularly in civil and family proceedings — are not a powerful political constituency, and the consequences of underinvestment are borne by individuals rather than by the public visibly. Genn (2010) has argued that this “invisibility” of civil justice is itself a barrier to reform, because the deterioration of the system does not generate the same political pressure as failures in health or education. This structural political weakness means that even where the case for investment is strong, the competing demands on public expenditure typically prevail.

Conclusion

Access to justice in England and Wales is being weakened by the cumulative and interconnected effects of court backlogs, legal aid contraction and digital exclusion. Each of these pressures is independently significant. Court backlogs, driven by sustained underinvestment and exacerbated by the pandemic, impose delays that undermine the constitutional requirement of timely dispute resolution. Legal aid contraction under LASPO has removed professional representation from large categories of litigant, creating a structural gap between formal legal rights and the practical ability to enforce them. Digital exclusion ensures that the populations most in need of court services are least able to benefit from the modernisation intended to improve efficiency.

Critically, these pressures interact. Legal aid cuts produce litigants in person who slow court proceedings; digitalisation designed to reduce delay excludes those already most disadvantaged by the withdrawal of legal aid; and the disproportionate impact on women, disabled people, ethnic minorities and low-income individuals raises questions of systemic inequality. The result is a justice system in which the practical availability of legal remedies depends increasingly on the resources and capabilities of the individual rather than on the merits of the case.

Existing reform initiatives — modest increases in sitting days, limited adjustments to legal aid thresholds, and continued investment in digital infrastructure — are insufficient to address the scale of the problem. What is required is a recognition, reflected in sustained funding and institutional commitment, that the justice system is essential constitutional infrastructure rather than a discretionary service. The state’s obligations under Article 6 ECHR, the common law right of access to the courts, and the principle of the rule of law as articulated in UNISON demand no less. Without this recognition, the gap between the formal promise of legal rights and the substantive reality of access to justice will continue to widen, to the detriment of those whom the law exists to protect.

References

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