Legal Aid in England and Wales: Entering the Endgame (2011-05-06)
Legal Aid in England and Wales: Entering the Endgame
This article, to be published in the forthcoming spring 2011 JUSTICE’s Journal seeks to put recent proposed reforms in England and Wales into their historical and, to some extent, international context.
The Coalition government published a consultation paper on legal aid reform, a matter of weeks of coming into office. The biggest losers will be people with civil problems considered ‘less important’ and which will accordingly be excluded from scope. Overall, the Ministry of Justice estimates that between 460,000-512,000 potential claimants will be effected by the cuts. Other estimates suggest that the numbers may be even higher: the Legal Action Group estimates that there may be an additional 150,000 losers.1
The overwhelming majority of losers will simply lose entitlement altogether but some 5,000 to 7,000 will have to pay higher contributions.2 This will represent an annual saving of between £274m and £274m in services no longer provided.3 In addition, practitioners will be expected to provide remaining services more cheaply – thus saving another £144-154m.4 By 2014-5, the intention is that the bulk of the cuts will have been implemented and savings made of around £350m in that year. Another £70m will fall in the next year when the package is completely implemented. Legal aid expenditure is currently just over £2bn a year and legal aid is, thus, being expected to contribute close to the entire 23 per cent cut demanded of the Ministry of Justice as a whole.
Relative to the general population, the Ministry’s own equality impact assessment acknowledges that individual losers will be predominantly women (57 per cent), ethnic minorities (26 per cent) and the ill or disabled (20 per cent – though this figure is very rough and could be higher). As far as providers are concerned, not-for-profit agencies will suffer the most. The Ministry of Justice appears to estimate that, overall, their legal aid income will decrease by a staggering 92 percent.5 This is more than double the impact on solicitors’ firms undertaking civil legal aid and is explained ‘partly because the proposals will see a larger proportion of work being taken out of scope in the categories of work that they are more likely to undertake, eg welfare benefits. It is also because [not-for-profit] providers currently undertake very little representation’.6
The political debate on the proposals continues. JUSTICE submitted its response to the consultation,7 and in addition, we have been responsible for various articles and commentary on the proposals.8 This paper is less concerned with the detail of the proposals – which are well explored elsewhere – than with putting the proposals into some form of overall historical context.
England has, until now, been a global leader in the provision of publicly funded legal services. No other country has such extensive entitlement and such an engagement by mainstream legal practitioners in the provision of legal aid. These cuts are of such a magnitude to threaten that position. So, how do we understand them in terms of the development of legal aid in England? For this, it is helpful to divide the history of legal aid into a number of different divisions, each with certain distinctive features. These fall roughly as follows:9
2006 to date Decline
If these time frames are accepted, then something is immediately noticeable. With the exception of 1970 (where it is actually not relevant to the argument) none of these four different epochs is co-terminus with government of a particular political hue. 1986 was right in the middle of Margaret Thatcher’s administration; 2005 was in the middle of Tony Blair and Gordon Brown’s. Party politics are surprisingly of little relevance to legal aid’s history. Late in the day, a potential difference has emerged. Under Labour, not-for-profit providers in poverty/social welfare law were encouraged into the legal aid scheme. Coalition policies are aimed at the removal of both.
The consultation paper displays a shaky grasp of history. The Impact Assessment on the consultation paper says that ‘The scope of legal aid has expanded beyond its original intentions …’10. The truth is a little more complicated than this statement suggests.
The Legal Aid Act 1949 was actually promoted with very wide objectives that were explained to the House of Lords as providing ‘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’. This is precisely the kind of wide approach to scope and eligibility under attack in the consultation paper – which may have affected its authors’ perception of history.
The 1949 Act was the result of the earlier Rushcliffe Committee, reporting as one of a series of plans for the brave new world after the Second World War.11 By comparison with the best known of those reports, that of Beveridge, Rushcliffe is a rather workaday effort that barely bothers to argue its case. Its membership was dominated by representatives of the Law Society and it was there to do a job on its behalf. The committee’s key recommendations were that:
Legal aid should be available for those sorts of cases where lawyers would normally represent individual clients.
Legal aid should be widely available not just to those people ‘normally classed as poor’ but should include all those of ‘small or moderate means’.
In addition to a means test (which would result in some applicants receiving free legal aid and others having to pay a contribution), there would a merits test designed to be similar to that applicable for private clients.
Legal aid should be funded by the state but administered by the Law Society and delivered by private practitioners (in the later jargon developed in the US, this was a ‘judicare’ model).
Barristers and solicitors would receive ‘adequate’ remuneration (originally conceived of as commercial rates less a 15 per cent discount).
For its time, the Rushcliffe report was seen as farsighted and attracted interest around the world. It was taken as inspiration for schemes elsewhere, particularly in Commonwealth countries such as some of the provinces of Canada and states of Australia. News of UK developments even reached the US where Reginald Heber Smith, one of the giants of the US legal services movement, wrote in 1947 praising its approach and calling for the US to respond in its own fashion:
In America, it is not too late for the organized Bar to accept and have the full responsibility for financing as well as conducting legal aid. The challenge is squarely before the profession of law.12
Smith is interesting for one other observation. He firmly puts the development of legal aid within the context of the Second World War, quoting the father of Lord Goodhart QC, JUSTICE’s onetime chair of council and still current Council member, as authority:
Concern for legal aid was a part of England’s supreme all-out war effort: ‘It was the army which first realised that it was necessary to furnish free legal advice if their morale was not to be affected. It has taken the war to bring the lesson home to those in authority.’13
This observation had another side to it. The Law Society was desperate to wind up the central salaried divorce department which it had been forced to establish to process the increased demand for matrimonial and divorce advice now that so many of its members had returned from service in the forces and wanted to re-establish their practices.
By 1970, the legal aid scheme was still relatively small yet rather staggeringly expensive to run. The Law Society took £2m a year to administer an expenditure of £12m – split equally between civil and criminal work. All the work was undertaken by solicitors and barristers, largely the former. Civil work was overwhelmingly about family matters. A slightly later study of provision in Birmingham found that family matters still accounted for 86 per cent of claims.14 Matters were, however, on the move. In 1966, the report of a committee chaired by Lord Widgery recommended a major extension of criminal legal aid.15 Largely as a consequence, legal aid costs were beginning to rise and had, in fact, doubled in 1969/70 from the previous year.
An important footnote needs to be added to this period of history. The Legal Aid Act 1949 represented a total victory for the Law Society. It got its scheme; its funding from the government; and, in doing so, surrendered considerably less control than the medical profession did in relation to the National Health Service. In retrospect, Rushcliffe is revered for the success of his committee but history is, as Churchill once remarked, written by the victors. Behind the victory of the Rushcliffe committee was the defeat of alternative versions of what might had been. The committee rejected various bids from what would now be known as the not-for-profit sector for an alternative model of provision. The socialist Haldane Society backed a national network of citizens’ advice bureaux. The Poor Man’s Lawyers Associations, based in university settlements like Tonynbee Hall in London’s East End, explicitly took issue with the Law Society on what should be covered by the scheme. It wanted scope to cover the issues faced by the poor people for whom they acted: workmen’s compensation, the Rent Restriction Acts, small claims and hire purchase. For the 1940s and 50s, the idea that legal aid might fund work beyond that traditionally undertaken by lawyers was dead but this was a demand that was to return with renewed force. With the present consultation proposals, one can see a pattern of provision that looks very much like the rise and then the (at least partial) fall of this entitlement to legal aid in areas of legal complexity but outside of lawyer’s traditional interests – such as welfare benefits and landlord and tenant law.
Legal aid entered the 1970s as, essentially, a minor social programme, helpful to a limited number of lawyers and clients. But, during the 1970s, it was transformed and yet another battle with alternative forms of provision was won and lost. Law centres flourished in the early part of the decade but by the end they had been seen off as any kind of major rival to the private profession. In return, private practitioners accepted – and, indeed, in many cases, embraced – a wider understanding of the kind of clients and problems that merited their attention. Annoyingly for the profession, at the end of this period, it was faced by another upstart challenge from a different not-for-profit provider, the citizens advice centre movement, pressing for its share of a burgeoning budget. Nevertheless, for solicitors and barristers working in the private sector, though they were rarely convinced of it at the time, these were the glory years when legal aid expanded dramatically.
The period began with a threat to the Rushcliffe model from across the sea. The United States began to develop a rival model of legal services provision based around a much more overtly political model. From the mid-1960s, legal services were subsumed within President Johnson’s War on Poverty and funded through the Office of Economic Opportunity. This movement developed a distinctive approach – very different from the Rushcliffe model:
By 1970, the US basic structure of the legal services program was in place. It was differentiated from traditional legal aid by what were later summarised as five principal elements:
The first element was the notion of responsibility to all poor people as a ‘client community’. Local legal services programs attempted to serve, as a whole, the community of poor people who resided in their geographic service area, not simply the individual clients who happened to be indigent and who sought assistance with their particular problems.
The second element was the emphasis on the right of clients to control decisions about the priorities that programs would pursue to address their problems. The legal services program was a tool for poor people to use rather than simply an agency to provide services to those poor people who sought help.
The third element was a commitment to redress historical inadequacies in the enforcement of legal rights of poor people caused by lack of access to those institutions that were intended to protect those rights. Thus, ‘law reform’ was a principal goal for the legal services program during the early years.
The fourth element was responsiveness to legal need rather than to demand. Through community education, outreach efforts, and physical presence in the community, legal services programs were able to help clients identify critical needs, set priorities for the use of limited resources, and fashion appropriate legal responses, rather than simply respond to the demands of those individuals who happened to walk into the office. The fifth and final element was that legal services programs were designed to provide a full range of service and advocacy tools to the low-income community. Thus, poor people were to have at their disposal as full a range of services and advocacy tools as affluent clients who hired private attorneys.16
These are a very different set of objectives to those set out by the more homely and considerably less ambitious Rushcliffe committee.
This new approach was articulated in a new language and with a new cadre of lawyers. Enthusiasm for new forms of provision stretched high into the establishment formed around Presidents Kennedy and Johnson. These comments come from a US Attorney General:
There must be new techniques, new services, and new forms of inter-professional cooperation to match our new interest….There are signs, too, that a new breed of lawyers is emerging, dedicated to using the law as an instrument of orderly and constructive social change.17
The US shook domestic UK conceptions of legal aid. Stories of the US experience made a heady brew. An appendix to a Society of Labour Lawyers pamphlet published in 1968, entitled Justice for All, by a then young academic at the London School of Economics, Michael Zander, made a major impact. He described in detail, and with enthusiasm, the work of the US neighbourhood law firms as he had seen them on a recent visit. In 1970, London’s first law centre opened its doors, having developed from a successful summer project in West London’s Notting Hill three years earlier in 1967. Over the next few years, a number of other centres followed, very largely funded by Labour local authorities keen to establish law centres often initially orientated to resisting the eviction of working class (and thereby Labour voting) tenants in favour of middle class gentrifies in formerly run-down inner city areas. Thus, a powerful combination of party political interest met the commitment of a new generation of young lawyers inspired by the US example over the defence of a very real threat to existing long-established communities in inner city areas.
In this maelstrom of activity, different law centres took slightly different positions. The earliest, North Kensington set out its stall as providing:
A first class solicitors’ service for the people of the North Kensington community; a service which is easily accessible, not intimidating, to which they can turn for guidance as they would to their family doctor or as someone who could afford it would turn to his family solicitor.18
Other law centres – like Brent or Newham – wanted a more explicitly structural approach to addressing poverty, more informed by the rhetoric of the US. Thus, the stage was set for a potential transformation of legal aid more in keeping
with US influence. The story of this period is how, essentially, this failed and was defeated by a private profession which already had more of a financial interest in legal aid provision than was the case in the United States.
England and Wales continued along its distinctive road of essentially providing public legal services through private provision. Once again, the Law Society carried out a very effective advocacy job. It persuaded government of the need for a flexible, state-funded legal advice scheme to be provided by private practice. This was designed to choke the development of law centres at birth and to direct the need exposed by the law centres back into arms of private practice. And it did so – arguably with some assistance from the position taken within the fledgling law centre movement. This eschewed the priority given to law reform and legal challenge that had played such a large part in the US in preference to community action and development.19 The centres, thus, had a justification for ceding work to private practice and, in the process, diminishing their own appeal as a distinctive legal rival. Whatever the cause, law centre numbers peaked at just over 60 and, thereafter declined. They never attained the critical mass to break through as mainstream provision in the way that they certainly did in areas of Canada, such as Ontario, or in Australia.
The fightback against the law centre model began in 1970 when the Law Society successfully influenced the government’s Legal Aid Advisory Committee in its response on reports on legal aid which had been produced by both Labour and Conservative lawyers (Justice for All and Rough Justice). The committee swallowed the Society’s idea for an easy to operate advice scheme and also for all law centres to be transferred to its direct control.20 In 1973, the ‘green form’ legal advice scheme came into effect providing two hours of advice on any matter of English law available from a solicitor on a minimal means test. In 1982, the scheme was enlarged further to provide ‘assistance by way of representation’ in proceedings before mental health review tribunals. Strengthened by its legislative success in obtaining the advice scheme, the Law Society attempted to kill off the law centre model directly by asserting the right to judge whether a law centre was needed, and its right thereby to decide on whether to grant a waiver of the usual professional rules against advertising and sharing fees. It reacted to US influence by condemning the ‘stirring up political and quasi-political confrontation far removed from ensuring equal access to the protection of the law’.21 However, the Society over-reached itself in seeking to close a centre established in Hillingdon, North London, and was forced by the then Labour Lord Chancellor to agree a demarcation of responsibilities for law centres which were allowed to establish themselves in the field of poverty or social welfare law without objection. By the time of the Royal Commission’s report on Legal Services in 1979, the Society had persuaded itself that law centres, at least in the truncated state to which they were by that time restricted, were a good thing; they generated business for the private profession; and they had ceased to be a threat to its core areas of income.
The late 1970s and early 1980s brought good times for the private legal profession, into which many former ‘law centre’ lawyers migrated. Criminal legal aid expanded from an annual £8m to £265m between 1970 and 1986. By the end of this period, the legal profession earned a total of £419m gross (and £342m net of contributions) from legal aid.22 Legal aid reached (on Law Society estimates) 11 per cent of all solicitors turnover in 1985/6 and was estimated at 30 per cent of all barristers’ income by the Royal Commission on Legal Services in 1979.23 The period comes to a fitting end with the statutory recognition of the duty solicitor schemes run by the Law Society in magistrates’ courts and police stations in 1986 – the last major extension of legal aid scope. The society secured their recognition – and more importantly funding – in negotiations over the Police and Criminal Evidence Act 1984: it dropped opposition to changes to the rules relating to police interview in return for solicitor presence and funding.
Storm clouds were gathering, however. 1986 was also the year in which another not-for-profit provider arose to challenge the legal profession in the light of the effective demise of law centres – the citizens’ advice bureaux (CAB) movement. CAB had been established as a lay advice movement during the War and had rather faded in the 1950s and 1960s. However, it underwent resurgence in the 1970s and 1980s as, effectively, a nationally franchised advice network with a spine of employed staff supporting an army of lay volunteers. By 1986, the movement felt sufficient strong to contemplate an ambitious bid to take over legal advice from lawyers. This happened in the context of proposals suggested to a Government ‘Efficiency Scrutiny’ that legal advice could be transferred to the voluntary advice sector at a much reduced cost. These were eventually scuppered, not least by internal opposition from the CAB movement itself. Its management was reluctantly convinced by its field workers that the service was over-reaching itself in suggesting that its largely voluntary workforce could replace lawyers wholesale. However, the audacious near-bid raised a question that still bothers the legal aid scheme – what advice requires lawyers and should be funded by legal aid and which should not. The consultation paper seeks to redraw this boundary and argues, for example, for the removal of significant areas of advice provision – notably in relation to areas like welfare benefits and housing law.
There were darker shadows as the mid-1980s drew on. Legal aid was, by and large, insulated from much of the drive to reduce government expenditure under the Thatcher government – probably because of the relatively small level of expenditure and the potential cost of alienating an influential lobby. However, the government refused to provide extra money for the new police station legal advice scheme in the way that it had cheerfully been persuaded to do for the green form scheme in the previous decade. To pay for the extension of scope of the duty solicitor scheme, the Lord Chancellor, Lord Hailsham, was forced to hit clients. He cut the eligibility of dependents in civil cases by 17 per cent – beginning the downward spiral of civil legal aid eligibility that was to culminate in the proposals of the current government to slash it even further. It was the first major cut to the legal aid scheme since its establishment in 1949 and, though it was linked at the time to a positive development, it was a harbinger of what was to come.
1986 to 2006: Indecision
The two decades from 1986 to 2006 span almost equally Tory and Labour administrations. In retrospect, they were dominated by a lack of firm management. Governments were concerned that resources were running out of control. In the autumn of 1991, the Lord Chancellor, Lord Mackay, famously said:
We are just about at the limit of what is possible without radical change.24
The legal lobby, particularly the Bar, proved highly resistant to reform, both of its professional structures and legal aid. As a result, there was more talk than evidence of really radical action. It may also have been that ministers were in no hurry to prove to the Treasury that reform was easy. As a result, report followed report without much result. There were certainly reports aplenty: these continued until the end of the Labour government in 2010. The consultation paper lists the 32 consultations issued since 2006. Yet, both governments liberally issued consultations For example, Mrs Thatcher’s government was responsible for a set of major reports with, for the time, some far-reaching ideas – notably the Civil Justice Review in 1998 and Lord Mackay’s controversial green papers on the legal profession in late 1990s.
2006 was the date of publication of the review that was intended to end all reviews, that of Lord Carter of Coles. Lord Carter endorsed the one big idea to emerge during this period in relation to legal aid (though one of which the United States has some experience) the compulsory competitive tendering for legal aid contracts of providers. It is notable perhaps that the Scottish system started to diverge from the one covering England and Wales from the late 1980s. The Scots favoured a different approach – a careful juggling of fixed fees, salaried providers and minor adjustments of policy. The English were fixated with the possible ‘big bang’ of competitive tendering. In the process, they took a considerable time to get to the obvious halfway house, fixed fees. But, Lord Carter – like the politicians who instructed him, loved the apparent commercial flavour of competitive tendering:
The recommended procurement reforms should lead to much better control and forecastability of legal aid spending. They should provide greater efficiency in criminal defence practices and the operation of the justice system, which should ease the pressure on civil and family legal aid. The recommendations should, subject to effective implementation, deliver efficiencies across the legal aid budget of £100 million against spend in 2005–06 without compromising quality and access to services for clients. This control will reduce spending on criminal legal aid by over 20% in real terms over the next four years.25
Paradoxically, Lord Carter’s report allowed ministers to pull out of the one scheme that was actually planned to test the idea of competitive tendering among London criminal practitioners on the ground that its methodology was not perfect.
Enough was done to contain growth in the cost of the scheme: Since 2003-04, the increase in legal aid spending has been contained, and the overall cost of legal aid has fallen by around 11 per cent in real terms.26 Legal aid spending in real terms dropped back from the peak year of 2003 when it was £2.36bn, to 2008-9 when it was £2.1bn at 2008-9 rates. Thus, Labour had successfully stabilised expenditure largely by widening the use of fixed fees. Throughout its period in office from 1997 to 2010 Labour remained obsessed by the idea that it had inherited on taking office; that competitive bidding for legal aid contracts held the key to obtaining major savings in remuneration that might avoid cuts to entitlement. This was, of course, vigorously opposed by those practitioners who thought that they would, thereby, lose out albeit that it was tacitly encouraged by those who thought that they might benefit from cutting out smaller competitors. The commitment to competitive tendering carries on and the 2010 consultation paper indicates that the government remains committed to its introduction.
There is one issue on which a genuine political distinction can be made between developments prior to the 2010 election and afterwards. Under Labour, the Legal Aid Board/Legal Services Commission was committed to the provision of legal advice in the poverty/social welfare law area and the board/commission particularly encouraged not-for-profit providers to deliver those services. Initially, this appeared to be as much a board/commission commitment rather than a political one – it was not clear who was leading policy and it looked very much like the board. The board established the Legal Services Research Centre in 1996. Its focus has been pretty firmly on civil legal services and it is best known for its excellent work in looking at legal need to justify advice provision. This led into its work on the English and Welsh Civil and Social Justice Survey. It describes this as ‘a large-scale nationally representative household survey of people's experience of, and behaviour surrounding, civil justice problems’.
The survey is central to the Legal Services Commission’s efforts to discharge its statutory duty, under Section 4 of the Access to Justice Act 1999, to ‘inform itself about the need for, and the provision of’ those services it is required to ‘promote’ and ‘secure access to’ through the Community Legal Service. The survey has been hugely influential in recent years. For example, in detailing the manner in which problems cluster, exposing and quantifying the phenomenon of ‘referral fatigue’, and highlighting the barriers vulnerable people face in obtaining help about problems. The survey has been a driving force in the movement towards more integrated and client focused service delivery (for example, through Community Legal Advice Centres and Networks). The survey has also demonstrated the enormous social, health and economic cost of civil justice problems, and the relevance of legal services to general social health and economic objectives.27 …
The Civil and Social Justice Survey was first conducted in 2001 … The survey was repeated in 2004 and, on a continuous basis, between 2006 and 2008. The 2004 and 2006-2008 surveys also involved numerous developments and refinements to allow for new forms of analysis and introduced new areas of study. To date, all surveys have centered upon 18 categories of civil justice problems:- discrimination; consumer; employment; neighbours; owned housing; rented housing; money/debt; welfare benefits; divorce; problems ancillary to relationship breakdown; domestic violence; children;
personal injury; clinical negligence; treatment for mental illness; immigration; unfair treatment by the police; and homelessness.28
The Commission’s investment in the Research Centre and the latter’s engagement in justifying poverty law reflected the interest and a priority of the time. It is striking that the centre was directed to undertake relatively little work in the field of criminal law at a time when major changes of delivery were being planned. The centre was largely corralled in the area or advice provision. This had an effect on developments. Nothing much happened in the field of crime apart from the slow and belated introduction of fixed fees – despite a rising rhetoric in favour of competitive tendering. Largely through the benign influence of the Legal Services Commission and the fitful support of ministers, not-for-profit providers (largely advice agencies) were encouraged into the legal aid scheme. The 2005-6 annual report of the commission reported that:
As at 31 March 2006 the total number of service providers holding a CLS contract was 4,101 ... Of these contracts, 3,632 were held by solicitors and 469 by not-for-profit agencies.29
2006 onward: Decline
The Carter report heralded a set of reforms of delivery from which Labour hoped to make significant savings. The rhetoric in favour of contracting on a competitive basis and against the current state of provision intensified. Jack Straw, Labour’s Lord Chancellor, appeared to grow increasingly disenchanted about legal aid:
In the early 1970s there were just over 2,500 practising barristers and about 32,000 solicitors, compared with 15,000 and 115,000 respectively today. This is equal to one lawyer for every 400 people. We are in grave danger of becoming over- lawyered and underrepresented.30
Yes another paper was released and the Ministry announced it hopes for the future:
The proposal, Restructuring the Delivery of Criminal Defence Services, would see the criminal legal aid market restructured so that there are a smaller number of large contracts contracted across a Criminal Justice Area. It would also allow for contracts to include Crown Court work so that firms have access to the higher value work. The Ministry of Justice acknowledges that the proposed restructure would affect a large number of small and medium sized firms, however maintains that the current arrangements are unsustainable and change is necessary to maximise value for money for legal aid while enabling efficient firms to thrive and make a reasonable return.
Labour encouraged headlines such as ‘Ministers determined to take the axe to the legal aid budget’ in The Times:31. It was widely thought that, if re-elected, Labour’s goal might have been to cut the legal aid budget by around 10 per cent. In
this context, the junior legal aid minister, Lord Bach certainly was happy to associate himself with a defence of social welfare law:
They [The Conservative-Liberal Democrat ministers] don’t get it. Their view of legal aid is so limited and old fashioned that they just don’t see the relevance of social welfare law …To have picked on social welfare is a serious error for which we will all pay.32
Whether Lord Bach’s boss, Jack Straw, had the same level of commitment was never entirely clear. In the event, we never got the chance to find out.
A review of the impact of the 2010 consultation proposals
The coalition government took office in 2010 with an overall commitment to reduction of the deficit. Few ministries escaped and certainly not the Ministry of Justice. The proposals are far-reaching both in their immediate effect and in the change they will make to the way in which legal aid has evolved. The green form scheme, as designed in the early 1970s, is effectively being dismantled. Legal advice will only be available in specified areas and withdrawn from:
Ancillary relief and private family cases (unless domestic violence is present);
consumer and general contract;
Criminal Injuries Compensation Authority advice;
specified debt, education, employment, housing and immigration matters;
miscellaneous matters (unless specifically retained in scope);
tort and other general claims; and
Upper Tribunal areas.33
Civil remuneration will face a set 10 per cent cut across the board and various reductions will be made in crime. There will also be cuts to eligibility.
Thus, both family, a substantial original area covered by legal aid and heavily to do with its initial impetus, and the later social welfare/poverty law areas will be heavily targeted. As a consequence, not-for-profit providers will be effectively eradicated from the scheme, rolling back both the law centres that emerged in the early 1970s and the advice agencies which took funding from the scheme in the years after 1986. Not–for-profit providers will also be affected adversely by the proposal to challenge all advice (except in emergencies) through a commercially run call centre. The legal aid minister, Jonathan Djanogly admitted the effect on citizens’ advice bureaux and other advice agencies like the specialist housing adviser Shelter:
The basic role of CABs is to give general advice, not necessarily legal aid advice, as they have been allowed to do only for the past 11 years. The problem, however, for those that do give legal advice is that legal aid funding will often merge with other funding streams. CABs are funded mainly by local councils and the Department for Business, Innovation and Skills centrally, and removing one stream could have a knock-on effect, but that does not make it wrong for us to be unwilling to pay legal aid for general advice.34
What is the future for legal aid?
The reforms deserve considerable examination. A noticeable flaw is that they have been produced at such speed that they look opportunistic rather than reasoned. They certainly do not begin a comprehensive and coherent examination of where liability for cost arises. Notably, they leave unexamined the provisions of the substantive law and such questions, for example, as how much saving might be made if divorce was available on demand or housing law was reformed in the ways suggested by the Law Commission.
These proposals are fundamental and of a magnitude to effect both the structure of legal aid and the legal profession itself. Their effects merit detailed consideration and we should begin this process by examining what is likely to be their impact. How will they change the structure built up since 1949?
First, the consultation proposals mark the end of the not-for-profit sector’s engagement in legal aid to any considerable degree. With that goes any vestige of the US-influenced notion of legal services as, in any way, oriented towards a wider social impact rather than service to a particular individual client. Legal aid is largely returning to the pre-1970 model of provision by private practitioners and not by salaried not for profits – whether in the form of law centres or advice agencies.
Second, the proposals presage the long-heralded contracting of services on the basis of competitive tendering. These are planned for a second wave of reform and, given the general orientation towards such an approach to public services, it seems likely that this will, at last, be implemented. The result will be a step beyond the dialogue that has hitherto been
mounted, in this country and elsewhere, between the advantage of ‘judicare’ services provided by private practitioners and salaried services like Ontario’s network of community legal clinics. In criminal matters, for example, we are likely to see what other jurisdictions would describe as a public defender service provided by contracted private providers – a model that is perfectly familiar in the United States. It may well be that areas of provision are undertaken by the new forms of business structure that will allow third party ownership from later this year.
Third, it is to be seen whether the cuts to scope will be sustainable. In particular, it may well be that it is just too politically difficult to hold the line on cutting out of eligibility most family law and clinical negligence cases. However, it would seem unlikely that ground will be recouped on the key areas of poverty or social welfare law, such as non-possession orientated housing law.
Fourth, paradoxically, the proposed cuts put renewed emphasis on legal aid’s role in supporting human rights as the government has been overtly careful not to remove entitlement in human rights cases. Public law will become the major area in which civil legal aid is retained, replacing the emphasis on family law with which it began.
Finally, the size of the proposed cuts raise the crucial question for the defence of legal aid as it has been known. How far will those who would – and should – be its clients recognise their potential loss and be prepared to act in defence of their entitlement? Do clients care as much as lawyers about legal aid? Unless they do, then little positive is likely to result from the predictable opposition of providers.
These cuts mean that England and Wales will join the other jurisdictions around the world where legal aid, expanded after the Second World War, is now heading into retreat. Pressures on Congressional spending and the squeeze on interest of lawyers’ clients accounts that have funded much US civil provision has left many US legal services organisations on the ropes – particularly in the poorer southern States. Australia and Canada have both seen withdrawal of labour by criminal lawyers demanding more adequate levels of payment. English lawyers may yet have another reason to be grateful to the Human Rights Act for privileging certain civil cases as well as criminal ones – giving them a tougher line of effectively a constitutional protection for essential civil representation than exists in countries outside the European Convention on Human Rights. Around the developed world, legal aid is slipping back to what each government regards as the irreducible minimum of scope. The extent to which lawyers and their potential clients can successfully challenge their current governments’ assessment of what forms that irreducible core of services will determine the future pattern of provision. And, the answer to this we shall see soon enough.
1 ‘Legal aid to ‘hit‘ 150,000 more’, C Baksi, Law Gazette, 17 March 2011
2 Para 29 Impact Assessment, Cumulative Legal Aid Reform Proposals, 11 November 2010
3 Para 27(i) Impact Assessment, Cumulative Legal Aid Reform Proposals
4 Page 2, Impact Assessment, Cumulative Legal Aid Reform Proposals
5 Table G, Impact Assessment, Cumulative Legal Aid Reform Proposals
6 Para 1.63 Impact Assessment, as above
7 Available from our revamped website www.justice.org.uk
8 Eg ‘Salvage Mission’ Law Society Gazette 17 February 2011, ‘Legal aid: revealing the grim reality’ Counsel, Feb 2011,
9 The first two ages follow an argument set out in various books for which I was responsible at the Legal Action Group, notably A Strategy for Justice, 1992 and Justice: redressing the balance in 1997.
10 Impact Assessment; Cumulative Legal Aid Reform Proposals para 12
11 Report of the Committee on Legal Aid and Legal Advice in England and Wales ,1945, Cmd. 6641; Chair, Lord Rushcliffe.
12 R H Smith ‘Legal Aid and Advice: the Rushcliffe Report as a Landmark’, 33 ABAJ 1947
13 As above.
14 L Bridges et al Legal Services in Birmingham Birmingham University, 1975
15 Report of the Departmental Committee on Legal Aid in Criminal Proceedings Cmnd 2934, HMSO, 1966.
16 A Houseman and L Perle Securing Equal Justice for All: a brief history of civil legal assistance in the United States, Center for Law and Social Policy, 2007, p12-13.
17 Attorney General Katzenbach in 1964 quoted in Securing Equal Justice, p5
18 Quoted in R Smith Justice: redressing the balance Legal Action Group, 1997, p16
19 See eg E Johnson Justice and Reform: the formative years of the American legal services programme Russell Sage Foundation, 1974.
20 Reported in Report of the Advisory Committee on the Better Provision of Legal Advice and Assistance (1985-86) HMSO, 1986, HC 87.
21 Law Society Report on the Legal Aid Scheme, 1973/74
22 P7, Legal Action Group A Strategy for Justice Legal Action Group, 1992
23 Op cit, p8
24 4 October 1991
25 Para 7, executive summary, Lord Carter’s Review of Legal Aid Procurement, 2006
26 Para 3.40
29 P18, Annual Report 2005-6, Legal Services Commission
30 22 March 2010
31 13 October 2009
32 ‘Labour says crime not social welfare should bear brunt of legal aid cuts’, Solicitors Journal, 7 February 2011
33 Para 16, Cumulative Legal Aid Reform Proposals, 2010,
34 Hansard, 3rd February 2011