Legal aid matters (and always has)
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Marc Bloomfield
Description: LAG 50 Years
Legal aid has been at the centre of LAG’s work since its earliest days. Sue James provides a brief history, and examines what we can learn from other jurisdictions and why we need to fight for it now more than ever.
Description: Legal Action legal aid covers
It probably won’t come as a surprise that legal aid is in the top five article topics in the Legal Action archives. The first is by LAG co-founder Simon Hillyard in March 1973, describing the new Legal Advice and Assistance Act 1972. He wrote that the scheme was available ‘on any question of English law’ and was ‘free where a person had a disposable income of less than £11 per week’. The article explains that the new scheme ‘will be advertised on independent television channels’ and ‘[a]bout £250,000 will be spent on advertising from April to November 1973’. Solicitors were issued stickers for their windows showing the legal aid logo. It strikes me reading this, that back in 1973, the government actually wanted people to know about the legal system.
I know I’m going to split the readership when I mention coloured legal aid certificates, but they were lovely to have on your file: flimsy copy paper – pink for emergency, blue for substantive and green for the amended certificate. I don’t recall there being any financial limitations once you got your substantive certificate, but perhaps I’m wrong on that. It was a long time ago.
The next legal aid article, in the November 1973 issue, is entitled ‘Legal aid, the community and the lawyers’, named after a morning session at The Law Society’s annual conference that year. LAG co-founder Andrew Phillips told attendees that lawyers were the ‘mechanics of the welfare state’ and we had reached ‘a crisis situation, the proportion of which is not generally understood in the profession’. Sir George Haynes, a member of the lord chancellor’s advisory committee on legal aid, is reported as saying: ‘The increasing complexity of life and legislation made the question of equality before the law again a matter of concern.’
It is this complexity of life that Stephen Wexler referred to in ‘Practicing law for poor people’ (The Yale Law Journal, vol 79, 1969–1970, page 1049):
Poor people do not lead settled lives into which the law seldom intrudes; they are constantly involved with the law in its most intrusive forms … Poverty creates an abrasive interface with society; poor people are always bumping into sharp legal things (page 1050).
History lessons
In 2019, to commemorate the 70th anniversary of the Legal Aid and Advice Act 1949, members of the Justice Alliance co-edited a booklet entitled Legal Aid Matters, which was printed by LAG. The simple idea was to document 70 cases for 70 years of legal aid. We asked lawyers, journalists, activists, academics, judges, etc to write up their favourite case in less than 100 words. As the cases started to come in – some well-known, others not – you could see how important legal aid had been in driving the social justice movement.
In the first period (1949–1970), while divorce work in the High Court was the main target of the new scheme, by the 1960s, legal aid was available in the county courts and the magistrates’ courts. Criminal legal aid in the Crown Court was under the control of the courts. At the commencement of the Act, 80 per cent of the population were eligible for legal aid.
The second period (1970–1986) saw the expansion of legal aid and the introduction of the green form scheme – with a simple test for income and expenditure – for advice and assistance on any issue of English law. It is within this period that you can really start to see that, with the explosion of the civil rights movement, legal aid provided the basis for the legal challenges to be made by the movement.
During the third period (1986–1997), Lord Mackay, who was lord chancellor from 1987 to 1997, made cuts to eligibility for legal aid and introduced standard fees. Legal aid became available to only those on the lowest incomes.
In the fourth period (1997–2005), expenditure on civil legal aid fell by a quarter in real terms, while spending on criminal legal aid increased by 37 per cent. The Carter Report (Legal aid: a market-based approach to reform, July 2006) was published in the fifth period (2005–2012), bringing reforms to consolidate the market, including more spending cuts, unified contracts for civil work and fixed fees for police station work.
Description: LAG legal aid books
To mark legal aid’s 60th anniversary in 2009, LAG published The justice gap: whatever happened to legal aid?, by then LAG director Steve Hynes and Jon Robins, in which they argued that legal aid had fallen short of its original aims. Then we had the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which cut the scope of legal aid and eviscerated it for most areas of law.
This compounded the existing issues of poor remuneration for providers and client eligibility in the areas of law that remained in scope that continue to this day. In 2012, LAG published Austerity Justice by Steve Hynes, which looked at why the civil legal safety net was under threat.
‘We are just about at the limit of what is possible without radical change’
Lord Mackay told legal aid practitioners in a meeting on 4 October 1991: ‘We are just about at the limit of what is possible without radical change.’ It’s a shame that what that meant was cuts to services and consolidation of the provider base, rather than innovation. But that hasn’t been the case in other jurisdictions. Both Wales and Scotland have recently had their own strategic reviews of legal aid and access to justice, and the international legal aid community is even further ahead.
The Commission on Justice in Wales found:
The significant cuts to legal aid made in 2012 have hit Wales hard. Proper access to justice is not available with the consequent threat to the rule of law (Justice in Wales for the people of Wales, October 2019, para 8, page 10).
This has resulted in advice deserts where people struggle to receive legal advice and are forced to represent themselves, with adverse consequences on outcomes and court resources, and a serious risk to the sustainability of the legal sector.
In February the previous year, the Scottish government published Rethinking legal aid: an independent strategic review. It recommended:
putting the voice and interest of the user at the centre, including creating a consumer panel;
maintaining the current scope of the legal aid fund but simplifying the process;
investing in service improvement, innovation and technology;
developing a new system for setting fees paid to solicitors conducting legal aid work;
establishing a new arm’s-length body responsible for delivery of publicly-funded legal assistance; and
increasing public awareness of its availability.
Internationally, most jurisdictions have strategic bodies leading legal aid provision. In the US, there is the Legal Services Corporation, which distributes federal funding to 132 independent non-profit legal aid programmes. Australia has similar strategic leadership with nationwide legal aid delivering direct services to clients. In Melbourne, the Victoria Law Foundation (VLF) has just started the field work for its Public Understanding of Law Survey (PULS). Professor Nigel Balmer, research director at the VLF, tweeted in February:
The #PULS will give better measures of (unmet) legal need, conceptualize problem experience/action in exciting new ways, integrate cutting edge #legalcapability work, & give legal needs surveys a much needed shove forwards. I’m excited, you are excited! Go fieldwork!
The PULS is a survey across Victoria, looking at how people experience, understand and navigate law and everyday life problems. It will explore what people know about their law, the justice system and its institutions, how they see it playing a part in their lives and how they experience legal problems. Legal needs surveys are not new – between 1996 and 1998, Professor Dame Hazel Genn conducted a landmark national survey of public experiences of the justice system, Paths to Justice.1See also Paths to Justice, Hart Publishing, 1999. It was pioneering research in which she created the concept of the ‘justiciable problem’: one that might have a legal solution. She asked three questions:
What are the justiciable problems the public face?
What do they do about them?
What happens when they cannot access good advice?
The two key findings won’t be a surprise for those working in social welfare law:
the experience of justiciable problems is widespread, with most experiencing housing, employment, debt and consumer issues; and
problems often ‘cluster’ together and are often interconnected.
Professor Sir Michael Marmot recently warned:
My life’s work has been studying the relationship between social conditions and inequalities in health. In the UK, a decade of austerity damaged public health and made health equity worse. But the cost of living crisis – and the chancellor’s failure to deal with it – is unprecedented, with its threats to the health and wellbeing of the nation (‘Studying health inequalities has been my life’s work. What’s about to happen in the UK is unprecedented’, Guardian, 8 April 2022).
Isn’t it time for that radical change?
Legal aid in the UK no longer works. For too long, it has been considered a problem on its own or even a series of discrete issues – scope, remuneration, eligibility and diminishing supply base. But legal aid is an area of policy and practice that links with others, particularly poverty and health. The Paths to Justice research remains important because it shifted the thinking from lawyers and courts to the needs of the client and by doing this it enables services to be much more targeted.
Legal Aid New South Wales has been developing services in response to client needs, putting the user at the heart of the service. Its legal needs research found that clients only wanted to tell their stories once, they wanted to deal with real people and they wanted to be sent to where they needed to go first time. As it designed a new service, Legal Aid NSW found that a linear model didn’t work as people’s lives don’t operate that way. Jane Cipants, director of client service at Legal Aid NSW, told the International Legal Aid Group Conference in June 2021: ‘People dip in and out with different needs and different vulnerabilities at different stages in their life and on different legal issues.’
Legal Aid NSW called the model it came up with the ‘opera house model’ because it was based on the Sydney Opera House. It grounded the service model in human services and the justice systems because it found that its clients and legal aid operate across both those systems. The client is put at the centre of the model and everything is designed around their needs. By streamlining its channels of entry, Legal Aid NSW has made it clear and consistent. It has differentiated the services depending on the vulnerabilities of the client and the impact of the legal matter with a triage gate to universal services, individualised services and holistic services.
Health justice partnerships form part of the holistic service provision, where lawyers are located in hospitals and GP surgeries. Many legal issues manifest as social determinants of health: people will present to their doctor with symptoms caused by living in poor accommodation or homelessness, financial hardship caused by debt, and welfare benefits and employment problems (as noted in the June 2015 Advice Services Alliance/Low Commission report, The role of advice services in health outcomes: evidence review and mapping study). Working within health settings, lawyers can mitigate health-harming social and economic circumstances, but funding is needed to do this. If the UK government is serious about levelling up, then legal aid should be a key part of any provision.
There is plenty of innovation in the international legal aid community. In Australia and Canada, legal clinics (the equivalent of UK Law Centres) are fully funded to deliver a holistic service in social welfare issues and targeted legal aid funding with health justice partnerships. In Minnesota, there are legal kiosks and justice buses and boats. In the US as a whole, there is a holistic public legal defence service. After a decade of austerity, post-Brexit and the COVID-19 pandemic, and now in a fuel crisis, we need a much more strategic approach to funding and resolving legal issues in the UK. Understanding legal need will enable services to be targeted to where they are needed and in ways that are necessary. Legal aid is too important not to.
What could good legal aid provision look like?
I was thinking about this question when I noticed a series of tweets from Suffolk Law Centre’s Audrey Ludwig in April, which goes some way to providing a near perfect answer:
Access to justice in civil cases 10 ideas:
1.A Law Centre in every community
2.A legal duty on [the Ministry of Justice (MoJ)] to ensure that legally aided representation available for all who qualify
3.A significant increase in upper limits re means tests income and capital to restore legal aid to low-paid working people
4.Access to free mediation
5.An increase in legal aid rates for providers to ensure it can be provided without being subsidised by private work or grant funding
6.The MoJ to provide funding for training of solicitors and barristers to ensure the next generation of providers
7.Bring back welfare benefits, debt, employment and immigration into scope for legal help
8.MoJ to fund legal aid duty desks at *every* family and housing court
9.MoJ to fund Law Centres to provide preventative work to ensure clustered legal problems solved early
10.MoJ to fund Law Centres to assist vulnerable people to navigate digital court processes/portals in areas of law still out of scope eg PI/consumer etc.
 
1     See also Paths to Justice, Hart Publishing, 1999. »

About the author(s)

Description: Sue James - author
Sue James is CEO of LAG. She was previously director and housing solicitor at Hammersmith & Fulham Law Centre and a founding trustee at Ealing Law...