Authors:Roger Smith
Last updated:2023-09-18
Regionalising civil legal aid
Louise Heath
Description: Legal aid
Roger Smith discusses how devolution might work in the context of civil legal aid, if a possible Labour government were to follow that agenda.
Let’s be clear about genre. This piece is analysis, not advocacy. It is an examination of how a Labour government might implement the recommendations of 2022’s A new Britain: renewing our democracy and rebuilding our economy, authored by the Commission on the UK’s Future, led by Gordon Brown. Keir Starmer has vowed ‘to undertake a root-and-branch reform of the UK constitution, moving political power out of London’. So, let’s see how this commitment to regionalism might work in the context of civil legal aid.
We should begin by noting a number of general issues that arise well before we get to the detail. A major initial point is that we do not know the extent of Labour’s commitment to the devolution agenda. It does not figure in Keir Starmer’s infamous five missions. The most eye-catching demand in Gordon Brown’s paper is reform of the House of Lords. There are many within the Labour party who dissent from giving this any priority. For example, the BBC reported that ‘Labour peer and former cabinet minister Lord Mandelson has warned that, without agreement from other parties, Labour’s plans risk dragging the party into a “quagmire”, soaking up “acres of time and energy” that would be better spent on other priorities’.
A further point is that one person’s devolution of power is another’s postcode lottery. If real power is devolved, all will not be equal. That is bound to give rise to endless political controversy. Yet another is the commission’s potentially contentious assertion that devolution will give greater political accountability. That was authored before the emergence of the problems in the Scottish National Party and the allegations of corruption against the Tory mayor of Teesside, Ben Houchen.
We had a degree of devolved planning of civil legal aid services in the old Regional Legal Services Committees of the 1990s. These originated with the Law Society-funded pilot in Manchester. They were initially about co-ordination of existing provision and encouragement of future innovation. They were intended to cover the country. This led the Legal Services Commission to the policy of introducing regional CLACs and CLANs (Community Legal Advice Centres and Networks). Former LAG director Ole Hansen dissected these in an August 2006 Legal Action article. He aired the criticism that they were a Stalinist attempt to take over legal aid practices and made hay with the lack of background research.
The situation may now, however, be rather different. Civil legal aid practice has been eviscerated by Conservative governments that have built upon the Osborne/Cameron Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) cuts. These targeted social welfare law and, together with cuts to matrimonial advice, provided a saving of £420m (adjusted for inflation) in 2021/22 as compared with 2010/11.
We have to hope that money will begin to flow back into civil legal aid to provide acceptable access to justice. Nic Madge and I have argued that the structure of a National Legal Service would facilitate that. Paradoxically, any commitment to greater regional devolution of power would practically require a stronger national body overseeing provision.
But suppose that some level of funding – say, simply for the sake of argument, an initial £200m (half of the cut) – could be made available for social welfare law. How might it be spent? One answer would be simply to let it flow to legal aid practitioners by reversal of the LASPO scope, eligibility and remuneration cuts. However, suppose that Labour really wanted to put a regional spin on this. How might it do it?
That involves an initial discussion of the nature of a ‘region’. For statistical purposes, there are nine regions in England, with another for Wales. That makes 10 in all. They are necessarily pretty big and throw together contrasting areas, often with historical rivalries. The North West, for example, includes Greater Manchester and Merseyside as well as Cheshire, Cumbria and Lancashire. This is used as the basis of the NHS North West Region. But, access to justice might be more difficult. Suppose you thought that Merseyside and Greater Manchester should have mainstream legal aid funding for locally based Law Centres. How would you equal provision out over the area as a whole?
Assuming these issues can be dealt with, how might regional commissioning of social welfare services actually work? Presumably, there would be three levels of engagement in decisions. Ministers would decide overall strategy and budget. A central independent body, for us the National Legal Service Commission, would invite regional responses and make decisions. Bodies at the level of the regions would advise what is best for their region.
There would have to be a fourth level of engagement, which might be the most interesting. Potential providers – Citizens Advice, Law Centres, private practitioners and others – would need to bid to deliver defined levels of service at defined cost. That could unleash unparalleled creativity or chaos.
Take your pick.