Wild Guess and Unlikely Dreams #2

Roger Smith

Crispin Passmore, author of the preceding post Legal Aid – more wild guess and unlikely dreams is –  it should be explained to foreign readers or those passing through from Mars – a bit of a cult figure in domestic legal service circles. Want an iconoclastic view of the legal profession’s stranglehold on legal services and abuse of self-regulation? He has been your go-to-man for close on a couple of decades. I am never entirely sure if I agree or disagree with him: it sometimes seems to be both at the same time. The  reason may be the different vocabularies and perceptions of two people who came into legal services policy close on twenty or so years apart. This can lead to diverging reasoning but, somewhat surprisingly, sometimes common conclusions.

Let’s begin with agreement.  ‘I expect we will continue to see the ebb and flow of legal aid that looks a lot like the last fifty years. There will be some grand announcements and false dawns, but little will change. Lawyers don’t embrace change and Ministers will continue to focus elsewhere.’ There are solid reasons for this. Lawyers are a powerful political bloc. State-funded legal aid is still an important source of income for both branches of the legal profession. As a minister, you might fall out with lawyers (as has happened over the last decade) while your over-riding political agenda of the moment is fiscal austerity but why pick a fight with that lot if you have other things on your mind – poverty, Brexit, declining economic status or whatever?

Let’s add another point of agreement. ‘There is little point in making arguments that legal aid saves Government money.’ These are always pretty tendentious – not to say tedious – and discount the fact that government just may not care. As Crispin says, ‘Legal aid may sometimes be a cheaper way of solving problems – but not solving them at all is even cheaper sadly.’  There is another aspect of this in what Crispin calls ‘failure demand’. We might want different language. Take an example. It was absolutely foreseeable – and considerably foretold – that much of Tony Blair’s anti-terrorism legislation would be overruled by the courts as in breach of the Human Rights Act. That made a small coterie of human rights lawyers a small fortune in legal aid fees: it gratuitously inflated the legal aid budget. But, that was, no doubt, regarded as worth every penny by Mr Blair’s supporters for making the political point that the Labour government was seen to be tough on terrorism – while knowing its worst excesses would be stopped. This behaviour might be better described not as ‘failure demand’ but ‘policy failure’ or perhaps, more contentiously, ‘constitutional abuse’.

The core of Crispin’s concern is whether public funds could be better targeted with the better use of technology and innovation. In crime, he favours a public defender model. But this raises immediately a problem which we might call the ‘legal aid paradox’. Legal aid in the UK is overwhelmingly more expensive than almost all other countries because we use more private practitioners to deliver legal services. On the other hand, the engagement of the private profession has kept eligibility (and probably quality) higher than in most other countries because of the profession’s lobbying power. So, Crispin’s solution might be logically correct but it would almost certainly prove a disaster in practice for users. Just look at the example of the Criminal Prosecution Service. Under Conservative and Coalition governments, its budget has declined from £615m in 2010 to a £528m in 2018/9. This is less steep than the decline in legal aid but that was largely due to cuts to eligibility and scope rather than simply reduced funding for existing work. A salaried service is more vulnerable to cuts.

However, the same considerations do not apply to social welfare or poverty law. It has been slashed so comprehensively that there are relatively few existing vested financial interests.  There is potential here too. Social welfare provision would manifestly benefit from bringing together the advice sector, the few remaining law centres and any private providers still standing to deliver the ‘ mix of web, telephone and face to face’ services for which Crispin calls. You would have to avoid the name (as previously used and, thereby, tarnished) but this would be something, as Crispin hints, like the Community Legal Service that the Labour government tried to advance. And we could develop the idea of personal accountability for  lead people who would publicly report on performance in specific areas either by function or by subject. That would be an interesting advance in delivering public services.

Crucial to any future model is the acceptance by government of the value of developing a sort of what Crispin calls a Sure Start for social welfare law and its responsibility to encourage strategic leadership. On the first, there needs to be a philosophy that has the widest political appeal. That raises an issue about whether the currently much favoured narrative of putting legal aid within the context of poverty reduction is right. The problem is that the Coalition and Conservative government have not been that impressed by reducing poverty. After all, government funding on Sure Start centres themselves (whose success is unarguable) has been cut from £637m in 2014-5 to £480m in 2017-8. 

The better argument might be to argue for access to justice in the context of citizenship and constitutional rights. After all, if anything positive at all is to come out of Brexit, it should surely include debate about, and ultimate agreement on, the rights of those living in the UK. They should include the vote, equality of opportunity, health care and access to justice. After all, there is a whole rhetoric based on Magna Carta that we can call in aid that should appeal to Little Englanders (who may well find themselves all too literally as heirs to a post Brexit UK).

Whatever the political justification, we need a political drive to deploy innovation and technology where it can help. That has to come from Ministers and be mediated through some form of appropriate administration. Personally, I was not in favour of the creation of bodies like the Legal Services Board but, actually, the creation of a smallish quasi-autonomous body with an innovation brief has changed legal regulation immeasurably. Crispin has been very much part of that.

The next government should, perhaps, commission a strategic review of social welfare law a similar to that on legal aid in Scotland by an independent figure. Its remit would be something like ‘to make recommendations for the provision of advice and information on any matter of English law [echoing the legal advice scheme established in the 1970s and destroyed by the Coalition government]; to advise on appropriate referral; to consider how social welfare problems faced by those on low incomes might be resolved; and to do so making appropriate use of technology and innovation.’ Actually, Crispin might do that rather well. After all, there is not much that could be lost. And a considerable amount to be gained.

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