Authors:Carol Storer
Last updated:2023-09-18
Editorial: Collaboration or confrontation?
Marc Bloomfield
In the legal aid and advice sector, there are many organisations carrying out tremendous work. Some concentrate on one area of law, such as the Immigration Law Practitioners’ Association, the Housing Law Practitioners Association, the Association of Lawyers for Children, Resolution, the Mental Health Lawyers Association, INQUEST, the Criminal Law Solicitors’ Association, the London Criminal Courts Solicitors’ Association, the Association of Prison Lawyers and many more. Some cover all areas of law, eg, The Law Society, The Bar Council and the Legal Aid Practitioners Group. Others, like the Law Centres Network and Citizens Advice, have a broad focus but specialise in social welfare law.
There are also those that lead on or support pro bono initiatives, like Advocate, LawWorks and the Free Representation Unit. And there are groups that represent sections of society: community groups and activist organisations like Rights of Women, Southall Black Sisters and Tower Blocks UK, as well as firms and not-for-profit agencies.
These organisations and groups have all answered consultations, lobbied MPs and ministers, and contributed their expertise in many, many meetings with local and central government. They have responded with the whole weight of their experience: knowledgeably, passionately and thoughtfully to consultations or in meetings. The most significant was the consultation about the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which received responses from over 5,000 people and organisations. Yet the government made very few concessions and proceeded with its proposals largely unchanged.
Most recently, the post-implementation review of LASPO, run by the Ministry of Justice, has consulted extensively and is now on to its action plan stage (the Legal Support Action Plan;1Legal support: the way ahead, CP 40, MoJ, February 2019. see page 10 of this issue). Again, many people gave up their time to contribute to that consultation, though this time with positive results, because the work being carried out is largely what the sector agrees is important to enable better access to justice for their clients as well as the many people who can at present obtain no advice, never mind any representation.
As the new decade gets underway (apologies to those who disagree that this is the start of a new decade) and the sector begins dealing with a government with a considerable majority, it seems an appropriate time to consider the thorny question of collaboration versus confrontation. Some of the most significant and positive changes to legal aid (for example) have come about when organisations have been forced to resort to litigation: they have had to litigate when the government would not listen to reason. The Public Law Project has been involved in many of these cases. At the same time, some of the less visible, non-headline-grabbing improvements do happen regularly through collaboration.
There is now a lord chancellor who understands the sector, but politicians seem to consider that there are no votes in providing more money for accessing and ensuring justice. Compared with the money given to the NHS, to social care, to fighting crime, or incarcerating more people, or any of the other government priorities, the sector may expect very little.
There are proposals in the court service, with digitisation and out-of-court resolution generally, where the government will seize opportunities to deliver to large numbers without increasing funding for legal aid for individual cases. It’s true that digitisation offers a number of possible solutions, but what the government needs to consider is how important its role is in enabling disputes to be resolved fairly.
Disputes may be criminal – where the state prosecutes for the wider good of society – or they may be between parents who disagree over how a child should be raised, or between a local authority and a homeless person about responsibility for housing. A democratic society must have a viable way of resolving disputes, not just because if it doesn't, lawlessness may result, but because a democracy needs people to be participating to work successfully.
It has been frustrating for the organisations that have collaborated to see that the one strand of the sector that could down tools (the criminal bar) was partially successful in obtaining what it wanted when it worked to rule (admittedly after trying to negotiate). We are where we are. We will have left the EU by the time this magazine is published and we are very aware of the economic uncertainty that this country faces in the months and years ahead. Our feeling is that the many groups mentioned here will continue to collaborate, but we fear that patience is wearing thin. Those who attend meetings and respond to consultations often do so unpaid. Many are exhausted by the constant juggling in their working lives.
People need to be able to enforce their rights. The sector cannot keep giving up its time to input into government decisions and then face being ignored so often. LAG would say that the government cannot afford to continue subverting rights (not only by the LASPO cuts, but also by its threats to limit judicial review), undermining the judiciary and treating the post-LASPO world as business as usual.
Where we can work together, we shall continue to do so. Where we can seek out people with whom to partner, we will. We need not patience when we are ignored, but a strategy. We want true engagement and fruitful dialogues to work together to alleviate the impact of the chronic underfunding of the justice system. Further confrontation is inevitable if the government ignores those who see, day in and day out, how many people are unable to obtain justice. We need a long-term strategy for the sustainability of the sector so that people in our democracy can be confident that their disputes will be resolved promptly and fairly.
We need smart campaigns and smart alliances. Most of all, we need smart ministers.
1     Legal support: the way ahead, CP 40, MoJ, February 2019. »