Ask any civil legal aid lawyer for a description of the problems they face and stop them after 20 minutes. These will have included – but not be limited to – no pay rise since 1996; a 10% cut in 2011; a slashing of the civil legal aid budget since 2010; a reduction in the number of legal advice cases of 750,000 a year since cuts introduced in 2012; a severe decrease in the number of legal aid practices; advice deserts. The consequences of swingeing cuts to the civil legal aid budget are clear: it would be surprising if a loss of half a billion pounds a year in spending was not traumatic. But the big question is: what could a cash-strapped new government do about it?
This article considers the idea of replacing civil legal aid with a new national legal service in the hope of more traction with an incoming government. It is set out in detail in a pamphlet published last month by the Legal Action Group: The National Legal Service: a new vision for access to civil justice. I wrote it with former Bindmans partner and retired circuit judge Nic Madge.
Let us negotiate potential misunderstandings. Some may confuse the idea with a ‘nationalised legal service’, a concept that had currency in the 1970s. This, however, is subject to the same fatal conflict-of-interest objection that should scupper the current shoddy arrangements for theoretical legal aid independence. Notionally, independent decisions on the merits of a legal aid case are made by… a Ministry of Justice civil servant. Indeed, the role of the director of legal aid casework (DOLAC) is currently held by the Legal Aid Agency’s chief executive Jane Harbottle (pictured below).
Any sceptic is going to find that a bit iffy – despite the bland assurance in her latest annual report (as DOLAC) that ‘the director acts independently from the lord chancellor and other ministers. Clear internal processes and structures are in place in the LAA to ensure that this independence is maintained’. A national legal service would be a common brand covering independent providers, not the state behemoth that might be foreshadowed by these current arrangements.
The other line of potential objection will come from grizzled legal aid practitioners who will argue: ‘Don’t mess about with names. Just give us the cash.’ And they have a point. The best argument against any reform is that civil legal aid has done us well since the 1950s. It has allowed a steady growth of coverage; it has protected poorer people from a range of injustices; it has helped solicitors to establish and stabilise high street practices and barristers to cut their teeth on cases early in their careers.
Until 2010, you could credibly argue that our legal aid was the best in the world. It is only the cuts associated with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) that have eviscerated provision. They amounted to roughly a third of the budget: about £400m out of a former £1.2bn. Legal aid, in particular, and the Ministry of Justice, in general, were seen as easy pickings. Let it be noted that this would not have happened under Lord Mackay of Clashfern or Lord Hailsham of Marylebone, two former giants as Tory lord chancellors. The appointment of weaker successors has had negative consequences.
At a Legal Action Group event to mark ‘10 years of LASPO’ held last month, legal aid practitioner after legal aid practitioner expressed outrage at the destruction of civil legal aid. The Law Society president Lubna Shuja joined in. Seriously discontented practitioners called for unionisation and strikes as the way of pressurising government. But the problem is the sheer size of the cuts. They have ripped the heart out of a once viable – if never entirely perfect – system.
Our starting bid must be to return to a pre-LASPO level of expenditure plus inflation. But this clearly cuts little ice with Conservative ministers, who are just not interested. They have other fish to fry. And it is pretty difficult for Labour or Liberal Democrats to say that they can find money at this level. As a private citizen even I have some concern. My grandchildren go to primary schools where kids in their classes are coming to school hungry and their families are dependent on food parcels and breakfast clubs. A decade of austerity casts a long and dark shadow over our society.
Thus, a demand for reinstatement of the cuts within the system of legal aid that previously operated looks pretty likely to be unconvincing. Keir Starmer is presenting a tough face against appeals for higher government spending. He knows that he will have a long line of public servants from doctors to railway staff on his back if he gets into office.
'Discontented practitioners called for unionisation and strikes as the way of pressurising government. But the problem is the sheer size of the cuts. They have ripped the heart out of a once viable – if never entirely perfect – system'
So, supporters of legal aid are faced with a hard choice. We can continue to argue for reinstatement of the status quo – restoration of the LASPO cuts plus a bit more to cover better remuneration of practitioners and earlier intervention for users. However, we could only do that in the knowledge that our words will be taken by the wind. We will feel righteous but nothing is likely to happen – except legal aid’s continuing decline.
Alternatively, we can argue, as we do in the pamphlet, for a new approach. Ours is based on four pillars: strategic leadership; a national and comprehensive legal service; more use of technology; and a search for new sources of sustainable funding.
Strategic leadership
We need a strong secretary of state committed to a plan that has been publicly discussed and is widely understood. No more half-hearted sticking plasters or attempts to postpone decisions like the current civil justice review. We also need the return of something like the Legal Services Commission, at arms length to the MoJ, with powers to review provision and institute plans for areas such as dealing with advice deserts.
Coherent package
We need legal provision akin to what exists in health – a coherent package of services. All the research suggests that early intervention is essential and can resolve problems which escalate with time. So, we should build up Citizens Advice as the initial point of contact, diagnosis, information and referral. It already has an excellent website. Give it a couple of years and artificial intelligence developments such as ChatGPT have a chance of making accessible high level information available to enquirers. Citizens Advice supplements its website with a national set of offices staffed by volunteer and full-time advisers. We know that this is an essential mix if we are to use digital means to reach large numbers of people.
A fired-up Citizens Advice branded as the first tier of a national legal service can successfully resolve an even larger number of problems than it does now. A new level of provision, which we have called ‘digital plus’, can be developed as a suite of tools to help users with sufficient digital skills to resolve their problems. These can expand into a range of services which are a combination of automated and individualised services similar to that operated by partnerships involving Rights of Women with the Royal Courts of Justice CAB, such as Finding Legal Options for Women Survivors, or by private practices such as Hello Divorce in the US.
These reduce costs through a range of automated procedures such as downloadable worksheets and checklists. Assisted self-assembly documentation has the ability to help users. There are examples in this country (such as on disability appeals) and in the US, where programs help users through the process of bankruptcy, obtaining citizenship and housing disrepair. The Dutch developed a brilliant way of interactively leading people through divorce proceedings. AI could make that even better.
The final tier would include legal advice, assistance and representation. As in Scotland, there should be a mixed-delivery model which is a combination of private practices, law centres, salaried and not-for-profit services, deploying whichever is best. Scotland has, for example, dealt with the problem of ‘advice deserts’ in this way. We do not need to change how these services are individually run. Private practices will continue. So too will the engagement of large numbers of lawyers. But we will benefit from them all being branded as part of a national service and chosen on the basis of ‘horses for courses’.
Technology
It would be odd if technology could not assist. The National Legal Service should keep an eye on the developing possibilities of AI in services such as ChatGPT and Google Bard. It should be ready to fund these at the appropriate time when early problems have been ironed out. They will offer sophisticated, personally tailored automated responses to enquirers. They will be able to operate in multiple languages and use speech as communication. One could imagine such automated provision being integrated with private practices as well as standing alone. To advance technology, the National Legal Service should follow what happens in the US. The Legal Services Corporation effectively allocates roughly 1%of its annual budget to a specific technology and innovation challenge fund addressing its priorities.
Sustainable funding
'The challenge for all is this: the poor of this country need legal aid and assistance in civil cases and they are not getting it. What are we going to do about it?'
Herein, of course, lies the rub. We can seek to reduce costs to maintain the profitability of practice. We cannot let the Treasury off the hook. Our starting bid remains £500m but we need also to look for other sources of income. Here are three ideas we might explore.
First, the Legal Aid Fund should recover higher costs against losing parties. Second, we might decide to add a levy to Supreme Court fees so that rich litigants can subsidise poorer ones – something effectively used in the US. And we might, as Michael Gove suggested, look to the wealthier members of the legal profession who benefit from the prestige of association with justice – for example by a surcharge on insurance fees for those practices with high turnovers.
The last suggestion will drop like a lead balloon among most Gazette readers in the better paid transactional areas of the law. But the challenge for all is this: the poor of this country need legal aid and assistance in civil cases and they are not getting it. What are we going to do about it?
Roger Smith OBE is a solicitor and expert in legal aid issues. He is a former director of LAG and Justice, and a former Gazette columnist
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