Authors:Roger Smith
Last updated:2023-09-18
Towards a comprehensive legal aid service
Marc Bloomfield
Roger Smith argues that we currently have an outdatedly narrow idea of what legal aid is for, and that a broader framework of services is key to its future.
We need to reformulate the purpose of civil legal aid. Let’s have a go with: ‘To help people understand legal issues that they encounter and to assist them to resolve legal disputes in the most appropriate way.’ This is the key argument in the proposal for a National Legal Service (see April 2023 Legal Action 10). And from it falls a whole series of consequences.
In 1948, when the civil legal aid scheme was passing through parliament, the then lord chancellor announced its then objective – radical enough at the time. It was ‘to provide legal advice for those of slender means and resources so that no one will be financially unable to prosecute a just and reasonable claim or defend a legal right, and to allow counsel and solicitors to be remunerated for their services’.1Lord chancellor, Summary of the proposed new service (Cmnd 7536, HMSO, 1948), quoted in Roger Smith, Justice: redressing the balance (LAG, 1997, page 13).
This laudable aim has served us well enough. Poverty should be no restriction to the exercise and defence of someone’s legal rights. But problems now arise from the inherent conservatism of this 70-year-old approach.
Legal aid was originally seen as funding lawyers to provide the same services for the poor as they had given to paying clients. As a direct result, the provision of legal information to people facing an increasingly complicated and wider web of rights and obligations developed outside the legal aid scheme. A network of post-war advice organisations grew up to meet the rapidly emerging need for early identification of problems with a legal basis – with the Citizens Advice service at the forefront.
In the process, barriers to justice were revealed that went beyond the financial, involving cultural, linguistic and other obstructions to the recognition by many people that their problems had a legal component that needed resolution. Law Centres played a pivotal role in revealing an alternative delivery mechanism from the 1970s on. They addressed hard-to-reach constituencies.
The stilted understanding of legal aid gave rise to a divided delivery system in which the role played by the non-lawyer organisations was undervalued, as was the practice of early intervention and dispute avoidance. Most of the rest of the common law world went a more nuanced route because public funding of legal aid took off much later – in the 1960s and 70s – often led by Law Centres or their equivalents. Thus, countries like the US, Canada and Australia have historically had a much more holistic approach to delivery.2See, for example, A Strategy for Justice: publicly funded legal services in the 1990s (LAG, 1992). They have put more money into outreach, public legal education, legal information, social welfare or ‘poverty’ law, and non-lawyer resolution.
The evisceration of civil legal aid by Tory governments since 2010 has been vicious. Ministers have been focused on little more than delivery of cuts and fudging the consequent edges. This has one, and only one, upside: it provides a moment when a new incoming government can reconsider the fundamental understanding of legal aid’s purpose. Indeed, we probably need some way of refreshing the argument for more government attention that goes beyond a demand – shared all too widely by public services – for more funding.
Key to the delivery of legal aid on this new definition will be the incorporation of the Citizens Advice service within the delivery mix as part of a comprehensive approach. We need its national legal information website to provide a solid base for the rest of the system. Users need digital information supplemented by face-to-face support. That is exactly what they can get from Citizens Advice. It provides (as do the other advice agencies) initial legal information and assistance that is the best in the world. We should build on that.
Seen from the ultimate goal backwards, legal aid not so much changes its shape as its perspective. Legal aid should be seen as a pyramid, with the free provision of legal information as its base. We still need specialist lawyers, but we also need much more assistance – digital and otherwise – to help people resolve a wide range of legal issues outside of courts. We should explore initiatives like recruiting public librarians to help people to use digital resources. Libraries could be badged as local information hubs offering access to the new comprehensive service. This should be good for their general footfall.
Such an approach should not be that expensive. If litigation and advice upon it can be self-funded through enhanced costs from losers or otherwise, then we are in a win-win situation. Providers could retain their existing independent identities – and sources of funding – but they could do so within a newly formulated national framework. That could generate wider participation in the service and provide more momentum for its preservation. Let’s get on with it.
1     Lord chancellor, Summary of the proposed new service (Cmnd 7536, HMSO, 1948), quoted in Roger Smith, Justice: redressing the balance (LAG, 1997, page 13). »
2     See, for example, A Strategy for Justice: publicly funded legal services in the 1990s (LAG, 1992). »