Legal Aid Group's 40th Anniversary Annual Lecture Event, 4 December 2012, hosted by Freshfields Bruckhaus Deringer
Lucy Scott-Moncrieff, president, The Law Society of England and Wales
Who is the 'we' and where is the 'here'? LAG's mission is to improve access to justice, particularly for the vulnerable and socially excluded. Its primary interest is promoting access to justice for the users and potential users of legal services.
LAG promotes equal access to justice as a fundamental democratic right. Justice demands both fairness of process and fairness of result. It seeks to remove barriers to fair and effective justice, particularly for those who have difficulty enforcing their rights or defending their interests.
So anyone who shares those aims and beliefs is one of the 'we', and the 'here' that we are having to move on from is the current state of access to justice. My professional experience means that I can speak with most confidence about how solicitors might answer this question, but I hope that what I say may resonate with others as well.
The week before last I was asked to address the Judges' Council on the priorities, opportunities and challenges facing the solicitors' profession; not an easy thing to do when we are so diverse, not only in the variety of our protected characteristics but in so many other ways as well.
Nonetheless, I felt it was safe to say that the priorities of the profession, all of the profession, are to be professional, remain profitable, and support the rule of law. When I talk of profitability, I include all the economic and financial circumstances that allow lawyers to earn a living as lawyers, so am including in-house lawyers as well as those in private practice. And I first want to talk about remaining profitable, because unprofitability leads to unemployment, and opportunities for professionalism and promoting the rule of law are few and far between when you are out of work.
So, how do those of us who have been providing access to justice for the vulnerable and the socially excluded, helping them to enforce their rights or defend their interests, stay in business when legal aid, the main payment system for achieving these ends, is removed?
As with any business when the market changes, we need to look for new markets, review and refresh our services, cut our overheads, market ourselves differently. This is nothing new; solicitors have been doing this for as long as there have been solicitors, which is why we are such a successful profession.
And none of this need lead to lowering professional standards, not least because legal aid lawyers are highly skilled at doing good work in difficult circumstances at very low cost. So that gives us an edge.
But although we are very used to adapting to the requirements of our paymasters at the LSC, we are not so used, in many cases, to the sort of business planning and marketing that our successful colleagues in other areas take for granted. But we can do it if we have to, and we do have to....and it will be much more interesting than yet another compulsory reorganisation at the behest of the LSC.
As an office holder of the Law Society I have travelled round the country meeting solicitors in all kinds of firms and businesses, including firms that have come out of legal aid over the last few years. Many of them regret not being able to offer a legal aid service to clients any more, but none of them regretted the liberation from the endless bureaucracy, low pay, and general all round hassle of doing legal aid work.
We know that, even without the cuts, there are many people who can neither apply for legal aid nor fund full service advice and representation themselves. This group is going to grow as austerity gets a tighter grip on us; as local authorities are unable to comply with their obligations; hospitals become more overcrowded and less safe; unemployment and underemployment put increasing pressure on families; and the benefits cap results in the dispersal of families away from work, schools and local networks. If we can find a way of offering these people a service, which helps them and helps keep us in business, everybody benefits.
When I became president back in July I launched my 'Good Ideas for Hard Times' online debate, which generated significant discussion among solicitors exploring ideas of how to mitigate the impact of cuts to legal aid, changes to civil costs funding, and the ongoing effects of the problems in the economy.
The contributions to the debate have fed into the work the Law Society is doing, through its Access to Justice Committee and legal aid and policy teams, to provide information and advice to our members. The Gazette will be publishing an article with the best of these ideas so look out for that early in the new year.
Whichever way you develop your business or organisation, and of course you may be developing a mixture of approaches, you need to be businesslike so that you can continue to be professional.
We will be producing practice notes on unbundling, confidentiality issues if you decide to share back office functions, and the regulatory implications of online services in the new year.
We will also be helping firms considering new ways of pricing their work.
We are looking - as with so many others - at how technology can assist firms and clients to access justice.
We are doing so because the speed of development in technology is such that things that could not have been imagined ten years ago are now commonplace, and for the most part, accessible by large proportions of the population.
If you want to stick to social welfare law and, like so many small legal aid firms, have no real assets other than your reputation and the quality of your staff, how about looking at becoming a community interest company? This is a form of ABS that offers real opportunities, not least the prospect of being able to attract grants and philanthropic funding for the sort of work you want to do.
No-one cares about your survival as much as you do, and although we will offer you the tools, it is up to you to build your own escape route from danger.
The survival of lawyers and their organisations doing good professional work is a matter for those organisations, helped by the Law Society and others. And I have no doubt that many of these firms and organisations will continue to offer services to vulnerable, disadvantaged and socially excluded individuals, one way or another.
But many people will not get the help they need. Who is responsible for ensuring their access to justice?
Here I think it is worth looking at the different sorts of justice we could be talking about. There is social justice, that which each of us thinks makes up a fair society, and achieving social justice is all our responsibility, mainly through politics and voting.
Then there are the justice systems, civil, family and criminal, and the MoJ is responsible for ensuring that everyone has access to these justice systems.
On its website the MoJ claims to provide fair and simple access to family and civil justice, and, certainly, if DIY access to the courts is fair and simple, it is certainly providing that. However, I think most of us know that complex DIY requires expertise, and in this case, the cost of putting right inexpert attempts to get justice through the justice system is one that we will all be paying for, for many years to come.
Which leads to a third form of justice; the one that lies at the heart of the rule of law; that individuals can enforce and protect their personal rights and liberties, if necessary through access to the courts. And responsibility for access to this sort of justice, the justice of laws properly and fairly applied, lies with the state. It is an integral part of the rule of law, which is the state's responsibility to uphold and promote.
Legal aid is not the only way of ensuring that people are able to enforce the personal rights and liberties granted to them by the laws of the land, but it has certainly been an effective way of doing so, and if the government chooses to reduce the scope of legal aid, it needs to be sure that other methods exist so that people without the money to pay privately for lawyers can still enforce and protect their personal rights and liberties.
Has it done so? Only it seems to think so.
When Lord McNally says that a disabled child should not need a 'lifetime of legal help' and should not need a lawyer in order to get his or her special educational needs met, I agree with him. If the law says that a disabled child has certain personal rights and liberties, including the right to suitable education, I think we would all be delighted if suitable provision was made quickly, easily, and in accordance with both the spirit and the letter of the law.
Does this happen? Apparently not, if one listens to the stories of people with disabilities or the parents of disabled children. In the absence of effective alternative methods, the need for lawyers to help disabled children obtain access to rights and liberties enshrined in law will continue, and if the government prevents poor families from getting legal help when nothing else is available I believe it is failing in its duty to uphold the rule of law.
And when the government tries to bring in regulations that say legal aid for judicial review of public bodies should not be granted until all other administrative appeals and alternative procedures available to challenge the alleged wrong remedies have been exhausted, I'm fine with that, so long as the other remedies will be so quick, easy and rigorous that going to court will become unnecessary.
But many JR applications are extremely time-sensitive...for instance challenging the prospect of being made homeless, or the failure to make provision of essential community care services for people with disabilities. We all know that complaints procedures, followed by Ombudsman procedures if the complaint doesn't resolve the matter, can take months or even years, which would not only exacerbate any wrong done to the applicant but also put JR completely out of time and out of reach.
The government claims that it never intended the test to have this effect, but it still took a debate in the House of Lords, last night, to get it to agree to amend the regulations to bring in a reasonableness test, as is the case under the existing regulations. The Legal Aid Practitioners Group, Young Legal Aid Lawyers and Law Society staff lobbied hard for this result, and I would like to pay tribute to them for their tireless efforts.
The government may claim not to have intended the apparent restriction on legal aid mentioned above, but it was upfront about its failure to honour a commitment it made earlier to allow legal aid to welfare benefit appellants, often disabled people, in 'point of law' cases at first-tier tribunal level. Lord Bach, to whom I would also like to pay tribute, said the lack of legal aid would deny claimants a fair hearing in point of law cases, and he was so obviously right that the Lords rejected the regulations, which is only the third time that secondary legislation has been voted down in the Lords in the last 44 years.
What is the government playing at? Did it not know that it was jeopardising the rule of law by seeking to put itself and other public bodies beyond effective challenge? Or did it not care?
This little episode illustrates two important matters: that it is for the government to ensure that effective remedies are available so that people can enforce the personal rights and liberties granted to them by the laws of the land, and that lawyers will be watching them very closely to measure their performance on this essential role of the state, and will challenge any failings.
The Law Society and other bodies are very much on the case of monitoring the effects of the cuts on the rule of law. We know that for instance the government's approach to 'trigger evidence' to fund domestic violence cases, is flawed, as is their intention to bring in a means-test of the capital assets, including the equity in their homes, of those on passporting benefits. These and other policy decisions will deny people the opportunity to enforce their personal rights and liberties, and we will be gathering evidence and putting it into the public domain to allow the public to decide whether the government is supporting or undermining the rule of law.
In case the government is looking for a quick and easy yardstick as to how to measure its performance on upholding the rule of law, I suggest the 'friends and families' test that is to be introduced into the NHS, where patients are asked if they would recommend the hospital they had been in to friends and families.
In the context of the rule of law, I would invite members of the government to ask themselves what advice they would give to a friend of theirs, or a member of their family, if they found themselves needing to enforce one of the rights or liberties granted to them by the law of the land. And if that advice was 'talk to a lawyer' what route to this would they recommend if their friend or family member has no money for this (an imaginative stretch for many of them, but then politicians have good imaginations). And if the only answer was one that they would not wish to see their friend or family member subject to, they can be fairly sure that they are they are failing to uphold the rule of law.
Of course the profession will not just be monitoring, it will also be acting.
Pro bono is a proud tradition in our profession, which will no doubt rise to the occasion as it has done so often in the past. And most of the effort here is going to have to come from those lawyers who can afford to put in the time and effort, of whom there are still very many.
Legal aid lawyers, whether in private practice or in-house, have been doing the heavy lifting for years, and at the moment they need to focus on survival, so the creativity, ingenuity, goodwill and expertise of the rest of the profession needs to come to the fore right now.
Some of the initiatives we are aware of or are involved in include:
- possible pro bono duty solicitor schemes in the family courts,
- engaging with the MoJ on its digital strategy,
- holding public bodies to account through pro bono litigation,
- the possibility of philanthropic funding to continue providing services free at the point of delivery,
- schemes such as those pioneered by the Personal Support unit to assist litigants with form filling and procedural matters,
- Pro bono legal and business advice which is helping legal not for profit agencies to restructure and deliver sustainable services,
- projects such as the Leeds based Manuel Bravo project which builds capacity by involving students working with non-immigration solicitors, under the guidance of train
- the successful Asylum Appeals Support Project which trains and supports lawyers to provide pro bono representation for housing and welfare benefits appeals by those appealing UKBA decisions,
- our partnership with LawWorks through which solicitors on career breaks, in retirement and those seeking employment are provided practising certificates so that their professional expertise can be harnessed for pro bono work,
- the LawWorks panel of nearly 200 accredited mediators that will offer pro bono mediation in a range of civil cases where either party is unable to pay, and so on and so forth.
And it is not just the lawyers who are stepping up; many non-legal staff of law firms contribute by volunteering through schemes like the Personal Support Unit or using their own professional expertise (marketing, IT, communications, HR advice etc) on a pro bono basis to support access to justice projects.
Something I would like our largest firms to consider is whether they might fund individual specialists to preserve expertise in areas where legal aid is being withdrawn and there is no private market. A prime example is welfare benefits. Legal aid for welfare benefit cases is being cut just as the universal credit is being introduced...the pilot starts in April.
We need people with the expertise to challenge decisions where the credit does not meet welfare standards, and to ensure that people entitled to it are not denied it, and provide advice to those in difficulty. We need expertise to be preserved and developed so that it can be made available to the volunteers at CABx, or MP's surgery staff who will find themselves at the sharp end of this, once legal aid has gone. How are we going to do this? Who is going to pay for it? All offers of help gratefully received!
We are also working with philanthropic organisations willing to support specific access to justice projects, and will continue to do so.
One way or another, we will do our best to help, never forgetting that it can never be enough, and the government remains responsible for any failure of the rule of law.
So where we go from here is forward: determined, focused, skilful and supportive of each other, the people we serve and the rule of law.
Thank you