Authors:Roger Smith and Nic Madge
Last updated:2023-09-27
Proposing a National Legal Service
Louise Heath
Roger Smith and Nic Madge, both long-standing LAG members and supporters, summarise their proposals for a National Legal Service to replace the ailing legal aid scheme.1The full paper is available here.
The legal aid scheme was one of the great post-war reforms of the Attlee government. The National Health Service sought to ensure that no one was without good medical care. The legal aid scheme sought to ensure that no one was without good legal advice or representation.
At its best, post-war legal aid was transformational, helping to shift the balance of power within society and providing justice for the many, not the few. It enabled women who had been abused to gain injunctions against violent men; tenants to prevent eviction and harassment by rogue landlords; workers to gain compensation from their employers for injuries suffered at work; and consumers to gain redress for faulty goods and dodgy services.
Now, alas, legal aid is broken beyond repair. Over the past 13 years, it has been destroyed; eviscerated by legislative changes, starved of resources and ruined by poor management. The supporting network of legal practitioners has been destroyed – one visible element of this is the growing expanse of ‘advice deserts’ lacking accessible provision.
It is time to start again with a new vision.
A fundamental overhaul of legal aid
The rule of law is fundamental to any civilised society. Without it, there is violence, chaos and inequality. However, the rule of law cannot function without access to justice.
There is an urgent need for a national debate about the way in which access to justice in general and legal aid in particular is provided. The forthcoming general election provides the context. That debate must incorporate the voice of all interested parties and extend discussion beyond the representative bodies of the legal profession. Our paper sets out, in outline form, proposals that could be incorporated into the manifesto of any political party seeking to form the next government.
Current levels of remuneration, scope and eligibility will no longer support what was, until a decade ago, the best legal aid provision in the world. The coalition and Conservative governments have destroyed civil legal aid as it was. Due to the lack of legal advice and representation, many people are excluded from their democratic right to justice.
In these circumstances, we have to explore what might be done with only limited increases in government expenditure. Clearly, this must involve radical change. The most significant will be a change of mindset.
Any new provision must focus on the needs of the people who will use it, remembering that they will include the most disadvantaged and vulnerable members of society. Legal aid must become more user-focused.
We need a clear new vision for legal aid. Its mission should be focused on the needs of its ultimate beneficiaries: legal aid should improve the ability of people to enforce rights, resolve legal problems and settle disputes.
There are four elements to our proposals: an emphasis on better strategic leadership; more co-ordinated provision within a new National Legal Service; more emphasis on technology and innovation; and sustainable funding.
Strategic leadership
Reform will require strong strategic leadership from the Ministry of Justice (MoJ). Any reformulation of legal aid in the next parliament will only succeed if it has the active support of: the lord chancellor; an energetic and committed legal aid minister; engaged senior officials at the MoJ; the senior judiciary; and practitioners. They must provide the necessary collective leadership. Access to justice for all must be a political priority.
There also needs to be an independent body of the kind that exists in most other jurisdictions to lead developments and co-ordinate provision. This would be similar to the Scottish Legal Aid Board, the US Legal Services Corporation or the former equivalent in England, the Legal Services Commission.
A National Legal Service
Legal aid needs a comprehensive network of integrated levels of assistance – each potentially separate but commonly branded as part of a new National Legal Service – which progressively assist people to enforce rights, resolve problems and settle disputes. That will range from the basic provision of information through access to self-help tools where appropriate to individualised legal advice and representation.
The government should establish, by Act of Parliament, a new National Legal Service. That National Legal Service should incorporate through common branding a fresh mix of new and old providers of legal aid to form one integrated service, which would provide legal help for all those who cannot afford it.
The name National Legal Service would invite comparisons with the National Health Service. It would demonstrate a new, dynamic, all-inclusive, comprehensive approach and a break from the failings of the current legal aid scheme. The use of the word 'Service’ would make it clear that its fundamental purpose would be to meet the needs of its consumers.
The interests of consumers – the people with legal problems – must come first. The new National Legal Service must be designed to meet their needs. It must focus on the needs of the people who will use the service, remembering that they will include the most disadvantaged and vulnerable members of society.
The mission of the new National Legal Service should be to:
deliver a mixed model of provision deploying private practitioners, salaried lawyers, Law Centres, national charities, advice agencies and others as required and available – devolving the detail on a regional basis;
manage and co-ordinate a national service providing access to justice, which would commonly badge all those providing services as part of the National Legal Service, whether or not they are directly funded by the service;
ensure that it provides an integrated and seamless service to its users, putting their needs first;
explore innovation of delivery and new uses of technology – fostering in particular the development of self-help Digital Plus tools and the integration of in-person and automated provision;
manage an annual challenge fund for projects giving innovative delivery and other technological advances;
monitor performance and conduct national and international benchmarking;
develop policy for presentation to the MoJ for the development of the service;
foster the co-ordination of a strong and dynamic legal assistance sector, including the educational development and training support for its employees and volunteers; and
work with partners to create fairer and more effective laws and procedures.
The work of the National Legal Service would require collaboration with the MoJ, other government departments such as the Department of Health and Social Care, HM Courts and Tribunals Service, the judiciary and academic institutions. The nature of the services provided by the National Legal Service should be determined by function, not by the type of provider.
Early intervention and advice are key. The distinction between advice provided by Citizens Advice and lawyers should be eliminated. All early or initial advice services should be branded as part of the National Legal Service. Its functions should be divided into three tiers:
initial early information and advice;
what we have called ‘Digital Plus’ – a developing set of do-it-yourself tools; and
legal representation, both in negotiations and in litigation.
Flexibility of provision is vital and it is for this reason that a mixed model is likely to be most effective. Existing private practitioners can be contracted to provide services in areas where they have specialised knowledge. However, the best service requires a range of providers.
Existing Law Centres perform a crucially important role, but they are severely hampered by a lack of adequate funding. The National Legal Service would provide the opportunity to put Law Centre finances on a proper, sustainable, long-term footing. Some funding would be provided nationally, directly via the National Legal Service. Additional funding could be provided locally.
Existing national charities that provide legal advice and representation, such as Shelter and the Child Poverty Action Group, should be brought within the National Legal Service brand. Their services would be funded from a mix of sources, eg, charitable donations, grants and directly via the National Legal Service.
If private practitioners, Law Centres or national charities are unable to provide necessary services, the National Legal Service should have the power to employ directly salaried lawyers to provide them.
In time, lawyers would be attracted to a new dynamic National Legal Service, but in the short term, a shortage of lawyers would require innovative solutions, eg, publicly sponsored retraining of existing lawyers and increased provision of social welfare law course options in academic institutions.
The approach of the National Legal Service would be very different to the old legal aid system. In addition to a different structure, there would be two new elements which would both enhance the service provided and save money: self-help and digitalisation.
Technology and innovation
Digital delivery allows services to be provided to the widest number of users, albeit that some, among them the most needy, will need personal assistance. Starting with the basic Citizens Advice and other general websites, we imagine the development of digital tools that will help many to resolve their own problems. This should be a major area of innovation and investment.
The development of artificial intelligence is still in its early days. Services such as ChatGPT and Google Bard are at present insufficiently reliable to provide significant assistance, without additional checks to ensure their accuracy. However, their future potential could play a significant role in providing legal services in appropriate situations.
The National Legal Service and those who contract with it should explore the digital frontier in legal information, advice and representation. To encourage this, one per cent of its annual budget should be allocated to a similar challenge fund, specifically aimed at developing Digital Plus tools. This is an initiative that has worked well in the USA in the form of Technology Initiative Grants that have begun to transform mainstream provision.
Sustainable funding
There is no doubt that the existing legal aid scheme is badly under-resourced. The National Legal Service would require a sustainable basis for funding. Given the economic situation, money from the Treasury will always be tight. It is unlikely that any government will provide significant additional funding, but the government should recognise the need to reverse the 2012 cuts and to raise expenditure on legal aid to the maximum level possible. There should be a levy on the better-paid members of the legal profession, perhaps through an uplift on insurance fees. There should also be a levy on court and hearing fees in the High Court and above, a mechanism that is used in the USA. There should be consideration of ways of recovering the costs of people represented through the National Legal Service payable by losing parties in litigation. Ways should be found by which improvements in technology can increase the services delivered without additional cost.
1     The full paper is available here»