As the legal aid bill reaches its final stage, Britain’s welfare state is set to take another debilitating blow. In this extract from ‘Public Service on the Brink’, legal aid lawyer Rebekah Carrier considers the obstacles that prevent lawyers working in the system from acknowledging the uncompromising reality of the coalition’s proposed reforms and from conceiving an alternative vision for the future.
Currently few people are eligible (financially) for legal aid and fewer are lucky enough to find a competent legal aid lawyer accessible to them and willing and able to take the case. It is very hard to even attempt to write anything about legal aid without considering the deficiencies of the current system but even harder to ignore the cataclysmic changes proposed by the current government.
It is also hard to see legal aid practitioners as anything other than firmly in denial: it is likely that few of us will have jobs in five years time and even fewer of us will have jobs that resemble anything like our current jobs. I often joke that my only future is managing a call centre but this has come to seem less and less like a joke, particularly given the proposals for a ‘telephone gateway’ for all legally aided advice and the preference for even those cases identified as eligible for specialist advice (and allowed through the gateway) to receive that specialist advice on the telephone.
One of the reasons that we may be in denial is the decline of legal aid which governments both Tory and Labour have presided over in recent years. This government confronts a system for providing legal advice to the poorest that is so weakened and so used to feeling beleaguered that the lawyers in the system have been arguably slow to appreciate the enormity of changes ahead.
Change will mean different things to the private sector and the not for profit sector. Many private practices will simply, finally give up on legal aid altogether. Those who practice in areas of law which are being removed from scope (and there are few of them left) will have no option. If employment law cannot be funded by legal aid then a private supplier cannot advise a non paying client about employment law. If many family law disputes are removed from legal aid scope, then only a client who can pay will receive advice. It’s quite simple. Private businesses, even those who have spent decades building up the expertise of their legal aid lawyers, will not be able to continue. Those who do little other work, either legal aid work which remains, or non legal aid work, will have to close.
Parts of the not for profit sector by contrast are not solely dependent on legal aid (but the alternative funding is also at risk). Many Law Centres already (despite many difficulties) provide services to those who are not eligible for legal aid, or provide services which legal aid does not cover at all. For example many not for profit providers provide representation at tribunals: this is not paid for by legal aid. Citizens Advice Bureaux will wish to and probably need to continue to provide free advice about debt and benefits. Most Law Centres would be loath to cease providing advice about employment rights or entitlement to benefits, and will be looking for alternative ways of raising funding for that work.
One problem facing Law Centres and others is that they must confront not only major changes (cuts) to legal aid but also the likely loss of many other sources of funding (many receive local authority funding which is also at risk) at a time when demand for legal advice and in particular advice about entitlement to services is likely to be greatly increased. For as the benefits system experiences large scale reforms, more people will need advice about reductions in benefit. The bureaucracy involved in administering change is likely to mean that mistakes are made, and advice and representation will be sought by those affected.
As local authorities cut spending on housing and social care, the pressure on staff who control the distribution of resources will increase, and there are likely to be longer and longer delays in decision making and in the provision of services themselves. The quality of services and of decision making is likely to decrease. Again these are the circumstances in which lawyers working in Law Centres are likely to experience hugely increased demand not only for individual services but for participation in local campaigns which as explained has traditionally been part of the function of local community based Law Centres.
The Law Centres Federation (LCF, the umbrella organisation for Law Centres) has facilitated debate amongst Law Centres about how to prepare for and adapt to change and in particular the likely future pressures on funding including legal aid cuts. This debate has raised old arguments and divisions about the philosophy of the Law Centres movement and the difference between working in private practice and working ‘not for profit’. The current regulatory position appears to prevent Law Centres from charging clients for legal services and some argue strongly that this needs to be changed to allow the many Law Centres at risk of closure to diversify to survive.
The debate has exposed wide ideological differences. It’s clear that some see the movement of Law Centres towards carrying out legal aid work at all as a mistake which has led them to lose sight of their rightful place rooted in communities, focusing on collective action. Some see the mere idea of charging clients as the ‘line which must not be crossed’.
It seems to me however that the debate in many ways is a false one. It’s not realistic to think that the poor who seek legal advice to enforce their rights to housing, benefits, the right to stay in this country or not to be victimised at work, are ever going to be able to pay what it costs to fund a legal practice. Law Centres who argue that the prohibition on charging should be lifted often talk unrealistically about charging different sorts of clients for other legal services (which Law Centres don’t specialise in) as a way of raising funds. This is a distraction from a real debate about whether legal advice and representation is best provided charitably, or whether it is something that those who need it should be entitled to.
I think that how legal services are funded and delivered can have a real impact on the quality of those services. Too often, legal aid clients have received and still receive a poor service. Sometimes this is from unscrupulous or incompetent private sector lawyers whose only motive appears to be profit (although its hard to guess where that profit might come from). Sometimes this is from not for profit agencies who have either failed to maintain sufficient independence from funders, or have become too focused on a charitable model where their role is seen as ‘helping’ unfortunate clients, providing tea and sympathy, rather than informing them and where appropriate enforcing rights. There are incompetent as well as highly dedicated skilled and effective lawyers across both sectors.
It is not yet clear whether The Law Centres Foundation will vote to allow Law Centres to charge for their services; we do not know whether the government will pay attention to the huge volume of responses to the consultation paper on legal aid, some of which will mean the end for many providers of legal aid across both sectors. What is clear is that it is almost impossible to grapple with issues about the role of legal aid and the relationship between lawyers their clients and the state at a time when the very existence of any legal aid service at all is under threat.
Without some consideration of what our role is and why, we remain ill equipped to contemplate the future.
For more extracts from the book see also:
'What the British Government is doing to welfare' - Mark Serwotka
'Hush money and the 'cannot culture': an inside account of the NHS' - Jonathan Edwards