At LAG’s 'Legal aid: fighting for the future' event on 27 March 2023, Roger Smith and Nic Madge launched their paper proposing a new National Legal Service (The National Legal Service: a new vision for access to civil justice).1See also April 2023 Legal Action 10. Why? Because the system that enables us to enforce our rights is not functioning as it should and, as a result, everyday problems faced by ordinary people are going unresolved. Free, legal aid-funded advice and representation services that are provided to resolve such problems are facing a resource crisis across England and Wales: the provider base has shrunk by more than a third since 2012;2House of Commons Written Question UIN 121917, 9 February 2022; answered 21 February 2022. most of the country now lacks any local provision for welfare, immigration, community care or education legal advice; and many remaining providers lack the resources to train new staff.3Over 40 per cent of provider respondents to the 2021 Legal Aid Census (excluding barristers’ chambers) reported not offering training positions due to resource issues: We are legal aid: findings from the 2021 Legal Aid Census (Legal Aid Practitioners Group, March 2022, page 21). Yet most people do not consider impeded access to justice an important issue facing Britain today,4When asked (unprompted) to list issues, in 2022, fewer than 0.5 per cent of respondents mentioned the legal aid crisis (or similar): Issues index: 2018 onwards (Ipsos). so it is difficult to imagine any government providing the resources necessary to resolve this crisis. Smith and Madge have suggested a radical alternative.

The authors of the proposal are right to highlight that a National Legal Service can only succeed with the support of practitioners. Those to whom we have spoken fear that this proposal might undermine their independence because ministers might respond to increased public concern about legal services by seeking to exert greater political influence over them.

Legal services are often undervalued because many of their benefits are not financial. If we are to secure proper resources, then we must demonstrate the value that they provide. The expenditure required to meet unmet service demand is relatively straightforward to calculate but doesn’t account for the wider savings that it can bring about.

Slashing access to legal services can end up costing more than it saves. Where legal problems go unresolved, they get worse and can eventually cost the government more through healthcare, housing or child protection than early advice would have done. It is for this reason that the World Bank called cuts to legal aid ‘a false economy’.7A tool for justice: the cost benefit analysis of legal aid, World Bank, September 2019, page 8. Cuts also cost money when they force non-lawyers into doing a lawyer’s job, and potentially result in inefficient and ineffective representations being made. If we can present a realistic estimate of service benefits, then we will strengthen the argument for properly resourcing them.

Such analysis might enable us to go further than the proposal anticipates: it presents a measured approach to new financing that is limited to a range of options including a levy on City firms. However, if we are to promote the view that legal services are public services, then we must also be prepared to make the argument for funding them as such, through general taxation. After all, the NHS is not funded by a levy on Bupa.

A National Legal Service might help solve the legal aid crisis. However, before we support one, we need to understand whether practitioners can be brought on board and to make the case for properly funding it.