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Nic Madge responds to questions posed in the July/August 2023 issue of Legal Action.
In ‘Two questions about a National Legal Service’ (July/August 2023
Legal Action 13), Joseph Summers of Public Law Project helpfully continued the debate about
The National Legal Service: a new vision for access to civil justice, launched at LAG’s ‘Legal aid: fighting for the future’ event on 27 March 2023. He rightly highlighted important points agreed by all
Legal Action readers. Access to justice is essential for democracy, but the existing legal aid system is in crisis. The provider base has shrunk alarmingly. There are advice deserts in many areas.
Joseph also posed two questions about the proposed National Legal Service (NLS). The purpose of this article is to answer those questions.
First, a brief recap. The idea of a NLS is based on the premise that the current legal aid system is broken beyond repair. What was once a fine building has been badly neglected for so long that it is in imminent danger of total collapse. Vital parts have been demolished, leaving gaping holes in the fabric. It is better to start again and design a completely new building. Patchwork repairs and reversal of the cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are not enough. A new vision is needed. A NLS must focus on the needs of the people who use it, recognising that they will include the most disadvantaged and vulnerable members of society. Its services should be made available under a common brand by existing providers: private practice; Law Centres; advice agencies; and national charitable bodies (eg, Shelter and the Child Poverty Action Group). If existing providers cannot make services available, the NLS should have the power to employ directly salaried lawyers.
The independence of the legal profession
Joseph fears that a NLS might undermine the independence of the legal profession because government ministers might exert greater political influence over them. He worries that common branding might challenge the power of providers to present themselves as independent, a prerequisite in earning clients’ trust.
This is an important issue. It is vital that lawyers enjoy total independence of government and are free, fearlessly, to challenge authority. The evisceration of the existing legal aid system frequently means that this is not now possible. A NLS must be independent of government and be seen to be independent. It should not be the kind of salaried nationalised legal service proposed in the 1970s. A NLS should be directed and managed by a board that is completely independent. Any Act of Parliament creating a NLS should provide a mechanism for its members’ appointment that ensures independence.
The cost of a National Legal Service
Joseph rightly notes that legal services are often undervalued because many benefits are not financial. Their value must be demonstrated. In part, that involves reiterating, time and time again, that the rule of law and access to justice are essential for the existence of democracy. There is no point in having democratic rights if they cannot be enforced. However, it goes further than that. Legal representation often reduces state expenditure elsewhere. The successful defence of a possession claim against a tenant means that the local housing authority does not have to secure accommodation under Housing Act 1996 Part 7. As Joseph wrote, slashing access to legal services can end up costing more than it saves. The
Society of Labour Lawyers aims, in early September 2023, to publish
Towards a National Legal Service, a collection of papers, including research by Joseph Kelen demonstrating that providing fully funded access to justice will ensure substantial benefits to the economy and savings to government.
Additionally, this raises the £640m question: how can we secure a permanent and sustainable financial foundation for legal services? It is impossible, a year before any general election, to define precisely either the scope of the NLS or its cost. People will have different views, but two things are essential: first, that proper measures to ensure access to justice are contained in the legislative programme of any new government; and, second, that all possible methods of funding are imaginatively explored.
Whatever the precise details, a newly branded NLS provides the best chance of achieving access to justice for all. Nothing should be off limits in considering possible funding. As The National Legal Service: a new vision for access to civil justice suggested, it may include: direct taxation (eg, restoration of LASPO cuts); a levy on a few of the better paid members of the profession; a supplement to court and hearing fees in the higher courts; using technology to increase services delivered without additional cost; and ensuring that party and party costs are awarded against opposing parties at a rate that fully covers the cost of representing NLS clients. Fixed costs brought in by the Civil Procedure (Amendment No 2) Rules 2023 SI No 572 should be disapplied when the successful party is represented through the NLS.