The Legal Aid Review in England and Wales: Four Starters

The legal aid cuts implemented by the Coalition Government in 2012 through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASP)) were severe. Their prime aim was intended to ‘make significant savings to the cost of the scheme’.  And they did – reducing expenditure by about a third. Now the Ministry of Justice wants to examine its performance. Ministers should pat themselves on the back: they saved rather more than they expected. But, the stated aim of the review is not only to be retrospective but to inform ‘the Government’s thinking on how we move forward into the future’ bearing in mind, for example, ‘the rapid technological advancements seen across society over the past seven years’. So, what should the Government think about the future?

The fundamental point about the LASPO cuts is that they were so severe that they have all but destroyed the historic pattern – overwhelmingly of private delivery – of services. The economics of legal aid practice in either branch of the legal profession are, at best, tenuous. An advance that really took off in the 1970s has been ruthless reversed. On the civil side in particular, the old pattern of a High Street practice that happily existed on a diet of conveyancing, a bit of local commercial work and legal aid has been destroyed. Almost gone also is the category of a ‘legal aid practice’ in the sense of a largely publicly funded firm doing a mix of civil and criminal work.

The cuts have caused considerable institutional and individual pain. They have disrupted careers and threatened the aspirations of young people attracted to public service in the law – paradoxically, a growing band of often very impressive young men and women increasingly coming from the kind of diverse backgrounds that would previously have excluded them from the profession.

Quite rightly, these are voices which will be raised during the legal aid consultation and raised with passion. They need little amplification here.

But, what does need emphasis is that the LASPO cuts were so deep that they created no less than three crises that need resolution. In addition to the profession, they have mauled legal aid out of shape because they were made in a vast rush. The criteria for cuts in the civil field was mainly that expenditure was in an area which was not protected by the Human Rights Act and would not be susceptible to obstructive legal challenge. Thus, the onetime open legal advice scheme has been reduced to an incoherent series of puddles of entitlement that would confuse a visitor from Mars let alone in a single parent in Margate.

And there is a further area of crisis. A distinctive feature of legal advice and assistance in England and Wales has been the way that funding has gone to the private profession for the work that they have chosen to do. Thus, the Law Society co-opted the Legal Aid Act 1949 in the very beginning to ensure that salaried divorce services were replaced by legal aid for private providers. The Law Society was still powerful enough to persuade the then Conservative Government to pass the Legal Advice and Assistance Act 1972 and fund a generous advice scheme on ‘any matter of English law’ in order to see off the challenge of law centres inspired by events in the US to develop ‘poverty’ or ‘social welfare’ law. No matter that it took a decade for the Law Society’s members actually to use the scheme for anything much more than matrimonial advice. The development of law centres was successfully stopped in its tracks.

A result of the private profession’s initial lack of interest in the legal aspects of most people’s ordinary problems was that a lay movement developed – both within the citizens advice bureau and other independent agencies – to meet the need. They did so on very low budgets provided locally not centrally and making much use of volunteers.

In the late 1990s, the body in charge of legal aid – first the Legal Aid Board and latterly the Legal Services Commission – gradually began a process of bringing the lay advice and legal sector together. It awarded contracts to law centres and lay agencies to provide advice and stemmed the open nature of the statutory legal advice scheme. LASPO abolished the commission and its cuts ended this process of integration. Indeed, the NGO sector was a major casualty of the LASPO cuts – suffering much more than the legal profession.

The result is that the current pattern of provision is geographically patchy (giving rise to talk of ‘advice deserts’), intellectually incoherent and, for both private practice and – much more – NGOs, surviving only on a financial knife edge. More importantly, this translates into people with legal rights in housing, social security, immigration, employment and the other areas of the kind of law that affects poor people being without redress. It is no accident that we are now noticing an epidemic of homelessness – and accompanying despair.

So, what is to be done and what can we hope of the future look promised by the review? The honest answer is probably not much. The government’s announcement states, however, that ‘The ability of everyone to resolve their legal issues is vital to a just society. We are committed to ensuring legal aid and other forms of legal support are available to those who need it.’

At this point, it is worth turning our faces to the north. Scotland began its move into devolution with a legal aid scheme very similar to that in England and Wales. It has just commissioned a review. Note the differences. This was conducted not by nameless civil servants but by a high profile outsider, Martyn Evans. It recommended a new legal aid agency to cover the whole gamut of provision. This is how Mr Evans reported on his process: ‘The wider publicly-funded legal assistance service in Scotland shares a key characteristic with other important public services. It is complex, has extraordinary reach, is delivered by multiple providers and is under-researched. At the conclusion of my evidence gathering, I considered four options for change. These were: • retrench: reduce services; • restructure: organise services in a different way; • reform: focus on improving delivery; or • rethink: develop a completely new approach.

I concluded … that we need a fundamentally new approach. We need to rethink legal aid and in doing so, widen it to encompass the whole range of what I have called ‘publicly-funded legal assistance’. We must also place the interest of users at the heart of this service.’

Mr Evans began with a vision. Let us note its ambition: ‘Scotland is a global leader in supporting citizens defend their rights, resolve problems and settle disputes’. He has six strategic aims to do that; one of which is to ‘invest in service improvement, innovation and technology’.

So, why should England and Wales have an objective any less bold? As the LASPO consultation develops, we will need more detail in response. But, as a bold first try, let’s have the aspiration that England and Wales will knock cocky Scotland off its perch. England and Wales – with the renewed nationalistic vigour of Brexit behind it – will regain the role that it has had as a global leader in this field. Currently, it is just an also ran and a has been. Clearly, there will not be the resources that once there were and that will need more reliance – not less – on the NGO sector and on technology. So, for starters, let’s have:

  1. An independent body overseeing all provision of legal assistance – funded pro bono or by central or local government.
  2. The establishment of a suitable number of regional NGOs to provide social welfare law – let’s call them law centres.
  3. A commitment to 1 per cent of all legal aid funding to go on small scale technological innovation (as happens in the US).
  4. The funding of Relate to proceed with its project – currently halted for financial concerns – with a largely online system of addressing family law disputes.

Any takers?

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