As it enters its seventh decade, and despite its flaws, legal aid remains one of the best such systems in the world, providing access to justice to over two million people a year. LAG?s new book, The Justice Gap ? Whatever happened to legal aid? outlines the history of legal aid, the problems it faces and some possible solutions.
Figures released by LAG this week to coincide with the publication of the book show that the poorest areas largely missed out on the extra ?10m that was made available for new civil matter starts last year. This illustrates one of the major issues facing civil legal aid, the wide differences in the geographic spread of the solicitor firms and not-for-profit agencies which provide the service. The LSC?s imposition of a formula bias against areas with existing high levels of legal aid expenditure was a crude attempt to address this, but it led to cities like Liverpool, Birmingham and Middlesbrough at the top of the government?s poverty league being excluded from receiving extra cash for social welfare cases just as the recession was hitting.
Part of the solution proposed by LAG to providing better access is a national telephone advice service backed up by self-help and legal education materials based online. To an extent, the government has been trying to do this through the LSC?s telephone service. We argue they should go further. By using existing resources, particularly the Citizen?s Advice service, a free telephone and internet advice service could be established for everyone. This would return legal aid to some degree of universal access.
But, unlike NHS Direct, which refers patients to their GP or hospital casualty service if telephone advice is not adequate, civil legal aid does not have specialist services based in every community to back up an advice line. To help meet this demand, LAG is proposing, among other measures, reconfiguring some of the civil legal help budget into a system of grants to match with local council funding and an expansion of before-the-event insurance. Even with these measures, LAG nevertheless recognises that, without an increase in cash from central government, civil legal aid services are unlikely to meet the needs of an increasingly demanding public.
At the very least, the government needs to move to separate the criminal and civil legal aid budgets, for at the heart of legal aid?s difficulties is the increasing expenditure on criminal legal aid which bites into the civil legal aid budget. Under the current government, Crown and other higher court cases were integrated into the legal aid system, and this is the main reason for the huge leap in legal aid spending to which ministers are so fond of referring. LAG is sceptical that the move to best value tendering for police station and magistrates? court work will have any impact on this. Some savings can be made by cutting pay, especially among the top end of the criminal bar, but for criminal legal aid, costs will only be properly controlled if a system of budgeting is adopted that takes into account cost drivers outside the control of the MoJ, such as new criminal legislation and procedures.
A final point: throughout its history, legal aid policy has been dominated by lawyers and latterly by the legal aid bureaucracy, currently in the shape of the LSC. LAG is calling for greater consultation and engagement with the public about what they want from the legal aid system. Unlike other public services, legal aid is seen as a sink service for the most marginalised in society; that is to say, those accused of a crime or the poor. It is only with wider public support that it can move to being the universal service it was originally intended to be.
Steve Hynes is director of the Legal Action Group.
The Justice Gap ? Whatever happened to legal aid?, ?20, by Steve Hynes and Jon Robins, is available direct from www.lag.org.uk or bookshops. LAG is holding a conference supported by the Law Society on 11 June in London to mark the 60th anniversary of legal aid and to discuss its future. Details are available on LAG?s website.