A Right to Justice

 

Liberal Democrat Lawyers Association Policy Proposals on Civil Legal Aid

 

Members of the Working Group

 

Executive Summary

 

Introduction

 

Labour’s Failed Access to Justice Policy

Ø      Geographical Coverage

Ø      Rationing

Ø      Bureaucracy and Micro-management

Ø      Funding and Remuneration

Ø      Reduced scope of Legal Aid

Ø      Verdict on the Access to Justice Act Regime

 

The Liberal Democrat Approach

Ø            Department of Justice

Ø            Overall Resources

Ø            Ring Fencing

Ø            Rationing

Ø            Commissioning Services – SLAs

Ø            Bureaucracy

Ø            Remuneration

Ø            Advice Centres

Ø            Call Centres

Ø            Outreach Services

Ø            Partnerships

Ø            Scope of Legal Aid

Ø            CFAs

Ø            CLAF

 

 Conclusion - A Civil Justice System Fit for the 21st Century

 

Appendix – Costings

Members of the LDLA Working Group on Access to Justice

 

 

The members of the Working Group are:

 

The Hon Sue Baring                         Former Chair, British Institute

of Human Rights

 

Sue Bucknall,                                     Director, Solicitors Pro Bono Group

 

Jo Hayes,                                           Barrister

 

Jonathan Marks QC (Chair) Barrister

       

Richard Miller,                                   Director, Legal Aid Practitioners Group

 

Lord Phillips of Sudbury,                  Liberal Democrat Peer and Solicitor

 

James Sandbach (Rapporteur)       Social Policy Adviser (Legal Affairs)

                                                            Citizens Advice.

 

 

The Working Group is also indebted to the following for their invaluable assistance

 

Evlynne Gilvarry                     Director, Representation and Law Reform, The Law Society

 

Nicola Mackintosh                Partner, Mackintosh Duncan

 

Tom Mellhuish                       Policy Officer, Health and Safety Department TUC

 

Janet Paraskeva                   Chief Executive, The Law Society

 

Nicola Rudkin                        Partner, Fisher Meredith

 

Roger Smith                          Director, Justice

Executive Summary

 

Access to the legal system is a necessary aspect of the rule of law and an important feature of a liberal and democratic society. People with limited resources should not be deterred from seeking legal advice, or representation because they are out-priced from the market for legal services.  Policy on the public funding of legal services must start from a requirement for universality in the provision of legal aid. The demands on legal services are likely to continue to grow as we live in a world of increasing legal complexity. However, legal aid provision has reduced and legal advice centres supported by pro-bono (voluntary lawyer) services cannot cope with increasing demand.       

 

New Labour established the Community Legal Service (CLS) to replace the legal aid scheme, a public subsidy system for legal services, introduced by the Attlee Government. The Community Legal Service introduced by the Access to Justice Act 1999 established a bureaucratic system of contracting for solicitors and not-for-profit advice organisations, which rations the services that can be delivered. At the same time the Government also reduced the scope of legal aid.

 

There are inadequate resources overall for civil legal aid.  Although spending on legal aid has risen from £1.5 billion in 1997 to £2 billion this year, this does not reflect responsiveness to demand and is largely accounted for by the growth of criminal legal aid. In 2001 the civil legal aid budget took up 43% of an overall legal aid budget of £1.716 billion, being £476 million for certificated work and £259 million for help and advice.  Legal aid currently provides 13% of solicitors’ overall income.  Within the civil budget, the expenditure on legal aid for asylum seekers has increased from £81.3m in 2000-2001 to £129.7m in 2001-2002 and £174.2m in 2002-2003, thus squeezing the remainder of the civil legal aid budget. Currently, legal aid costs the equivalent of just 5% of the expenditure of the NHS.  It is incumbent upon Liberal Democrats to tackle myths and to meet challenge of properly funding legal aid, which we regard as a vital public service.

 

Liberal Democrats put justice first, believing that there should be no discretionary rationing of legal assistance, that remuneration for those undertaking publicly funded work should be set at a level that ensures quality of service, that there should be an easy-to-use and widely accessible publicly funded legal advice scheme and a new Department of Justice. Liberal Democrats would regard the resourcing and organisation of publicly funded legal services as a key responsibility of the new Department.    

 

The backbone of any publicly funded legal service should continue to be solicitors’ firms playing to their local market strengths and legal expertise, but solicitors’ work should be supported by a diverse network of advice agencies and community organisations. Liberal Democrats would move from the current system of narrowly focused, case-rationed and heavily regulated contracts to a system of service level agreements. In order to retain and build skills in legal aid advice work the issue of remuneration needs to be addressed. Remuneration rates should be sufficiently attractive both to recruit and to retain competent legal professionals and should be set by an independent board

 

Challenging questions remain about the scope of legal aid funding. Under current eligibility rules, legal aid is only available for the very poorest and is not available for tribunal cases or mediation. Alternative mechanisms for funding cases such as conditional fee agreements have not been altogether successful, but we would not want to put such funding arrangements in jeopardy when access to justice is genuinely widened. This paper contains a number of proposals on these issues.

 

Our proposals can be briefly summarised as follows.

 

  • To ring-fence the civil legal aid budget, so that increases in priority spending on criminal and asylum cases do not reduce the remaining civil budget

 

  • To substitute for the current regime of rationing the number of clients a solicitor or advice agency may advise a system of carefully adjusted criteria governing the scope of  and eligibility for legal aid, to be applied fairly and universally

 

  • To substitute for  the present heavily regulated contracts  a flexible system of service level agreements, tailored to the skills and capacity of service providers;

 

  • To involve lawyers with recent practical experience of publicly funded work in allocating and monitoring agreements in a proportionate and cost-effective way;

 

  • To establish an independent review board to set legal aid rates at a level appropriate to recruit and retain competent legal professionals

 

  • To facilitate the establishment of a network of call centres and community justice centres country-wide to offer legal advice and information as cost-effectively as possible and to encourage the development of outreach services in remoter areas.

 

  • To extend legal aid to tribunal cases and for alternative dispute resolution

 

  • To introduce a scheme of regulation for organisations providing services under conditional fee agreements.

 

 

Introduction – The Civil Justice Crisis

 

  1. Liberal Democrats have always put the protection of individuals’ rights at the heart of their approach to policymaking and government. In order to fulfil people’s legitimate expectations to be able to enjoy their statutory rights, citizens must have access to legal advice services when and where they need them. Arguably, since the Human Rights Act came into effect the Government has a duty to ensure fair access for all to the legal system. However, for many in today’s society gaining access to the civil justice system is simply impossible - high legal costs and inadequate provision of publicly funded legal services present real barriers to seeking help for those with moderate and low incomes. Furthermore, the Courts themselves do not have sufficient resources to manage cases effectively - in short the civil justice system is in crisis.

 

  1. There are increasing concerns, especially in the press, about the growth of a ‘compensation culture’ and it is therefore suggested that access to the courts and public funding should be restricted. Liberal Democrats must treat such claims with scepticism. Whilst it is always desirable that disputes should be settled appropriately and without undue acrimony or expense, it is an essential part of a liberal and democratic society that citizens should have recourse to legally enforceable rights and remedies - whether against the state, service providers or private individuals. Access to the legal system is a necessary aspect of the rule of law.

 

  1. Public policy on civil legal aid should therefore always be developed in this context. People with limited resources should not be deterred from seeking legal advice and legal help or representation because they are out-priced by the private market for legal services. Research shows that around forty per cent of the population experience ‘’justiciable problems’’ during their lives; that figure increases significantly amongst socially excluded groups.[1] Around forty per cent of those who experience these problems do not gain access to appropriate help. It must be better understood that civil justice problems are not abstract legal problems; they concern people’s accommodation, employment, families, consumption, health and income, as well as the quality of services that they can expect as consumers.  These are the issues of everyday life.

 

  1. The starting point for any fair policy on the public funding for legal services is a requirement for universality in the provision of legal aid. Strategically, legal aid should be seen as part of the government’s total spending on solving social problems and tackling social exclusion.  If funded and managed appropriately, legal aid can be a powerful lever to achieving a solution to other problems, for example of housing disrepair and poor landlord practice, and has the potential substantially to reduce spending in many areas of state provision. Indeed it is estimated that unresolved justiciable problems cost the economy some £12 billion in terms of lost productivity and additional social and welfare state costs.

 

  1. A properly functioning civil justice system therefore adds much to prosperity and social progress.  Eight years ago, Lord Woolf outlined his vision for the civil courts, which included the simplification and streamlining of civil procedure and the introduction of a comprehensive IT system. Government failure to back such reforms has undermined the courts. The Courts have inadequate facilities and ADR remains under-resourced, despite the high importance attached to ADR and pre-action procedures in the new Civil Procedure Rules.  Although the recent reviews of the Civil[2] and Criminal[3] Courts have resulted in improved procedures and administrative arrangements, the Government has continued to ignore the problem of funding the Courts system. The Treasury requires that the Courts should fund themselves by recovering costs from users (‘’full costs recovery’’) and rationalising the Courts estate. As a result Court fees have increased and many local courts have closed, making the courts system less accessible for the most socially excluded.  However, for much of society, it is still the lack of availability of legal services that denies citizens access to justice.

 

  1. The demands on legal services are likely to continue to grow as we live in a world of increasing legal complexity. A society cannot enact over 12,000 pages of new law every year without direct consequences for legal services.  The morass of welfare law, for example, which grows ever more technical, forces many of its beneficiaries to seek advice.  It thus makes heavy demands on the legal system, to which voluntary organisations such as Citizens Advice have responded well.  But, as they are the first to accept, where cases are particularly complex or contentious, recourse to solicitors is often necessary.  However, with the number of legal aid providers decreasing, the difficulties for consumers in accessing appropriate and affordable legal services mean that the failure of the system is now becoming ever more apparent.

 

  1. The pretence that legal advice centres (employing less than 5% of the legal workforce) supported by pro-bono (voluntary lawyer) services can cope with existing levels of demand is a delusion, which imperils adequate funding. One of the most disreputable aspects of the present crisis in legal services is the readiness of some ministers and law officers to jump on the “let’s kill all the lawyers” bandwagon, regularly taken up by some tabloids. Lawyers are often seen as pariahs rather than fair and fearless advocates. In the course of the Access to Justice Bill, for example, the Lord Chancellor Lord Irvine highlighted “fat cat” Q.C’s in the criminal legal aid system, a tiny number, to obscure the reality of under-funding, just as some ministers are now failing to make clear that lawyer abuses of legal aid in the immigration and asylum field are wholly untypical of legal aid generally.

 

  1. Our proposals aim to redress the balance. They are anchored in gaining the benefits as well as meeting the costs of an effective, fair and accessible civil justice and legal aid system. The proposals are both consistent with and essential to the party’s longstanding commitment to guaranteeing civil rights. The key is access to information and advice, and, where necessary, the financial and social support to help people to take effective action to enforce their rights and fulfil their obligations of citizenship.

 

Labour’s Failed Access to Justice Policy

 

  1. New Labour established the Community Legal Service (CLS) to replace the legal aid scheme, a public subsidy system for legal services, introduced by the Attlee Government in 1948. Despite the government’s good intention, to enhance access to justice for the most socially excluded, the CLS has not proved a success. Even the Government’s own review questions whether the CLS delivers a "seamless" service for disadvantaged people or ensures easy referral to the right agencies to deal with their problems.  All the research on how the new system is working shows that lawyers are withdrawing from publicly funded work in large numbers as a result of bureaucracy and under-funding.[4] Since the introduction of the CLS the number of solicitors’ offices undertaking publicly funded work has reduced from over 10,000 to around 4,500.

 

  1. When the Attlee Government introduced the legal aid scheme after the war, it was, apart from New Zealand, the only system of its kind.  Today it is in terminal decline, the great ideals of its introduction undermined by cuts and centralised managerialism.  Comparing total spending with the volume of bills paid suggests that, whilst more is spent than ever before, in real terms fewer people are being helped now than in 1996/97 for the same money.[5]  Whilst all public expenditure must be fully justified, Liberal Democrats believe two things.  The first is that real equality before the law is an indispensable ideal of any civilized society.  The second is that, given fair rewards within a professional context, there are many lawyers ready to help maintain that ideal.

 

  1. The Community Legal Service – as introduced by the Access to Justice Act 1999 - established a system of contracting for solicitors and not-for-profit advice organisations under the management of the Legal Services Commission, working to a common system of quality marks and supported through a network of local partnerships. This was a major departure from the old legal aid scheme under which solicitors’ firms received a direct subsidy for qualifying cases. Greater quality control has had some effect in driving out poor quality suppliers from the legal aid market. However, there have been a number of serious problems with the new approach. Chief amongst these are: -

·        Geographical coverage;

·        Rationing;

·        Bureaucracy and micro-management;

·        Inadequate resources overall;

·        Disincentive levels of remuneration;

·        Reduced scope of legal aid;

·        Uneven planning and the mixed success of CLS partnerships.

Geographical coverage

 

  1. Because of the reduction in the number of outlets, the geographical spread of legal aid firms has been substantially and perhaps irrevocably compromised.  The effect of this has been particularly acute because of the defined specialisms for each contract. Outside major towns and cities there are very few contracted welfare, employment, housing or immigration practitioners, and more specialist areas of public law practice are less accessible still. A detailed analysis of the problem of ‘Advice Deserts’ can be found in a recent report from Citizens Advice[6] and in evidence taken by a major inquiry into the adequacy of legal aid provision by the Select Committee on Constitutional Affairs. For example; -

·        In Buckinghamshire and Oxfordshire there is only one law firm in each county with an LSC housing contract, compared with nearly 30 firms with family contracts.

·        In Bristol five years ago there were at least six firms who regularly practised in housing law and other legal aid work.  Each of these firms contributed to a duty possession proceedings rota at the Bristol County Court.  Five of these firms have now withdrawn from publicly funded work since the introduction of the Community Legal Service.

·        In Bradford there is only one firm of solicitors providing publicly funded housing advice.

·        There is a lack of specialist housing advice services in Northumberland and Redcar and Cleveland, with no solicitor contracts north of Newcastle and no contracted supply at all for mental health and community care advice in the North East.

 

Rationing

 

  1. The contracting regime means that the amount and type of work that providers can take on is rationed and controlled by the Legal Services Commission. Contracted solicitors are given case quotas (“matter starts”) in particular areas of law, whilst advice agencies have to achieve target hours. As a result, legal aid lawyers regularly have to turn away clients. Under the present system, the resources given to legal aid are rationed in three ways, all of them completely arbitrary: -

 

(i)                 First, as evidence from Citizens Advice shows and as the LSC’s figures for the numbers of contracts held indicate, there are significant parts of the country where legal aid services are not available either at all or in particular fields of law.  Would-be clients therefore face a postcode lottery as to whether services are available close enough to be accessible.

 

(ii)               Secondly, because of the capped budget, the Community Legal Service is vulnerable to what the DCA’s Independent Review of the CLS describes as “policy exocets”.  These strike when the policies of other Government departments, most notably the Home Office, cause an increase in the demand for legal aid for criminal and other cases, where funding is mandatory, consequently reducing the money available for civil legal aid in a way that is entirely arbitrary.

 

(iii)             Thirdly the system of “new matter starts” means that a solicitor can only see an arbitrarily fixed number of new clients during any one year. If the solicitor runs out of matter starts, any subsequent clients seeking legal help must be turned away. Again this comes about not as a result of any logical decision as to which cases should or should not be funded, but as a result of the time of year at which the client happens to seek assistance.

 

Bureaucracy and micro-management

 

  1. At the heart of the CLS is an elaborate and byzantine system of bureaucracy, operated by the Legal Services Commission, to award, audit and quality control legal aid contracts and other partnership projects. The LSC does not come cheap: its administrative costs are around £70m, double that of the Legal Aid Board – its predecessor agency.

 

  1. The system wastes significant resources on time-consuming contract compliance and performance management processes. Contracts contain an unnecessary level of detailed reporting and administrative requirements, to the extent that some providers find that the actual costs of running a legal aid contract can turn out to be more than they’re being paid by LSC. At worst the LSC can impose financial penalties during the financial year, if LSC auditors are unhappy about the management of contracts on the basis of a small sample of files.

 

  1. The contracts contain a number of unfairnesses and inflexibilities and use proxies for quality to measure performance; the contracts run to 250 pages of detailed rules on the type and units of work that can be claimed. If providers do not work to the LSC’s strict rules, contract payments can be downgraded within the financial year to reflect audit results. In some cases, the LSC attempts to claw back money.  This all       creates huge uncertainty for providers and further undermines their capacity to plan their services and employment arrangements.

 

  1. Above all the auditing system is profoundly wasteful. It is manifestly absurd to have a thousand auditors auditing five thousand contracts. Indeed reports from both the National Audit Office and the Public Accounts Committee have questioned whether the introduction of contracting and its accompanying compliance and enforcement regime have provided value for money.[7] Moreover, civil legal help and advice only account for 12% of the overall legal aid budget, yet it is these files that are the most heavily audited. These resources could be better spent on supporting providers through ‘quality development and support’ services rather rigid rule-based contract compliance audits. The LSC has now undertaken to lighten the load for providers achieving ‘’preferred supplier status’’, but the majority are intermediary and average performing suppliers, helping many thousands of clients. These potentially reach the level of the best with some extra support. However, the policy of only supporting ‘preferred suppliers’ will drive many more firms and agencies out of the market.

 

  1. Despite the introduction of a rigorous audit regime, there nevertheless continues to be a problem with ‘rogue firms’ operating in certain legal practice fields, such as immigration, which raises questions over how effective the audit process really is. The problem is that the LSC ‘uses a hammer to crack a nut’, which penalises good, average and poor providers equally. It would be preferable to weed out the rogue suppliers at a much earlier stage, through operating a blacklist.

 

Inadequate Funding

 

  1. There are inadequate resources overall for civil legal aid.  Although spending on legal aid has risen from £1.5 billion in 1997 to £2 billion this year, this does not reflect responsiveness to demand and is largely accounted for by the growth of criminal legal aid. In 2001 the civil legal aid budget took up 43% of an overall legal aid budget of £1.716 billion, being £476 million for certificated work and £259 million for help and advice.  That made a total of £750 million odd for civil legal aid, in addition to which there was £400 million odd recovered under the statutory charge.  Legal aid currently provides 13% of solicitors’ overall income.  That figure used to be 30% in early 1990s, though the larger part of that amount was criminal legal aid.

 

  1. The spend breaks down into different fields for advice and representation.  Family work tops both but thereafter the money spent on advice and legal help is the greatest for immigration, then welfare, debt, housing and employment.  The money spent on representation, after family work, goes on clinical negligence, immigration, actions against the police and employment, and the small amount of personal injury work that remains within scope.

 

  1. Since the advent of the CLS, the civil budget has been capped at £820 million – it cannot go over this figure, whilst the criminal legal aid bill has increased by 22 % over the last year alone. Within the civil budget, the expenditure on legal aid for asylum seekers has increased from £81.3m in 2000-2001 to £129.7m in 2001-2002 and £174.2m in 2002-2003, thus squeezing the remainder of the civil legal aid budget.

 

Remuneration

 

  1. All contract values have been frozen at 2001-2002 levels, with no allowance for the RPI, cost of living increases, rises in national insurance contributions or upgrading of IT and other office systems. In real terms this means that providers are having to subsidise contracted work and deliver more work for less every year.  This is having a devastating effects on professional morale in the legal aid sector. Research suggests that 44% of legal aid firms would be unwilling to take on more work at current remuneration rates whilst 24% of firms surveyed stated that they would be willing to take on more legal aid work, but would need to hire more staff and/or expand their premises to be able to do so.[8]

 

  1. The increasingly unviable pay rates for solicitors are at the root of the long-term rundown in the legal aid system.  To that must be added its stultifying bureaucracy and the relentless increase in the volume and complexity of statute law, which affect the costs per case. The assumption by this Government and its predecessor that cost savings can always be squeezed out of any system by economies of scale may work in the retail sector but has little application to legal services.   This is the because legal services are, intrinsically, highly personal and, where the legal aid scheme is concerned, are also concentrated on the most disadvantaged and needy citizens. They, in turn, can be a demanding clientele in terms of their ability both to impart clear instructions and to understand and act on advice. 

 

  1. The truth is that solicitors doing legal aid work are, far from riding a gravy train, undertaking some of the most difficult and yet the worst remunerated work confronting the profession.  Typically legal aid rates (most of which have not been uprated in line with inflation for years) are half or less than the rates for the same work done for private clients. To make matters worse, the bureaucracy imposed by the Legal Services Commission is choking, ineffectual and demoralising.  As the Legal Aid Practitioners Group makes clear, it often involves a paper-chase charade in which real quality of outcome is largely overlooked.  Perhaps that is unsurprising given that only a tiny number of Commission assessors have hands-on experience of the type of work they are auditing.  Furthermore solicitors are not remunerated for the considerable time spent dealing with the bureaucracy involved in managing the work they do.

 

  1. It is against this backdrop that many legal aid solicitors, whilst still possessed of a strong sense of public service, are ‘getting out’, with many others cutting back on the volume of cases they will undertake and/or cherry-picking those that they do.  Often it is the most capable practitioners who are giving up, confident that they can replace their legal aid caseload with private work with less trouble and more reward. Thus, as this report and other reports detail, there are now growing deserts of legal aid provision all over the country and, no less important, a clear but immeasurable decline in the quality and experience of those offering it.  This is particularly obvious in the immigration and asylum field, because of a combination of the above factors reinforced by a concentration of that work in urban areas and amongst certain communities. None of these issues can be addressed without a clear and transparent system of remuneration tied to professional competence and public service ethics.

 

Reduced scope of legal aid:

 

  1. Finally, the Access to Justice Act reduced the scope of legal aid in order to target more resources on social welfare law.  Personal injury cases were excluded from legal aid altogether and the rules excluding tribunal cases from legal aid were made harsher. The withdrawal of legal aid from personal injury in particular in favour of promoting conditional fee agreements has led to the growth of an unregulated claims handling industry (such as Claims Direct (now insolvent) and the Accident Group) and ethical concerns about their practices. 

 

  1. The withdrawal of public funding from claimants in personal injury cases has led to a substantial growth in the use of conditional fee agreements (“no win no fee”).  This was intended by the Government in passing the Access to Justice Act. The benefit of the availability of conditional fee agreements (“CFAs”) is that access to the courts is available to claimants with strong cases, particularly simple ones, even if they would not have qualified financially for legal aid. However, there are serious ethical and consumer concerns about the effect of CFAs on the provision of legal services (see paras. 66-74 below).

 

Uneven Planning and Partnerships

 

  1. There are two mechanisms for tackling local service gaps in the CLS: needs assessments are carried out by the Regional LSC Offices and local partnerships (CLSPs) have been established to help formulate contracting strategies and develop local services. CLSPs are charged with a number of challenging tasks:  first, assessing local priority needs for legal advice and guidance and the production of a Strategic Plan;  secondly, establishing referral systems;  thirdly, taking action within local communities to increase access to justice for all, especially those groups or individuals experiencing social deprivation. They are also expected to establish linkages with Government programmes and local initiatives. Without support it is impossible for partnerships to fulfil this role, and research shows that in many parts of the country these partnerships are moribund – this is not surprising as they have very few resources to support their challenging development brief.  

 

  1. CLSPs were developed under the Access to Justice Act across most of the country. In theory, they bring together local solicitors, not for profit advisers and funders from the LSC and the local authority to discuss and plan local provision of advice services. In practice CLSPs have not been a success. The Department of Constitutional Affairs has recently published its three-year review of the Community Legal Service. The problems it identified with CLSPs included the following (page 62):

(i)                 The role of CLSPs is unclear;

(ii)               The influence of CLSPs and their strategic plans for funding and other decisions is unclear;

(iii)             Initial enthusiasm for the new CLSPs has diminished as their initial role has been fulfilled and their future role is unclear;

(iv)              Membership of CLSPs is variable and limited, particularly among private sector providers;

(v)                There is relatively little emphasis on preventative policy work within the CLS;

(vi)              There are relatively few ‘levers’ for encouraging active participation in CLSPs;

(vii)            There is some (largely anecdotal) evidence to suggest that local authorities are seeking ways to reduce their input into CLS services.

 

  1. CLSPs have been hampered in their development by the fact that members are not entitled to any compensation for the time spent on CLSP work, or even out of pocket expenses. The involvement of solicitors in private practice has been patchy. Legal professionals make up 25% of the membership of CLSPs, while those from the not for profit sector make up 33% of the membership.[9] Yet 93% of the CLS budget of £812 million goes to solicitors, and only 7% to nfp agencies.[10] Other findings of the Review Team make for more discouraging reading. 31% of respondents to the Review Team’s survey considered their needs analysis to be “not very accurate” or “not accurate”; while many of the referral systems have already fallen into disuse because they were unduly complex.[11]

 

  1. The Review Team indicated that it seriously considered recommending the abolition of CLSPs. However, it drew back from this step “because it would leave the CLS without a local strategic presence and would fail to capitalise on the useful work already undertaken by partnerships”. Good work the Review team identified included the following:

·        The development of outreach services where providers are awarded contracts which authorise them to provide outreach sessions to cover areas where there is no current contractor. These are understood to be particularly useful in rural and remote areas where there is not enough demand to sustain a full time contract.

·        Innovative approaches such as telephone helplines dealing with specific areas of advice provide mechanisms to improve coverage and access. Such initiatives have been developed not only to help address gaps in provision of legal services, but also to help people in rural areas and people with disabilities to obtain access to justice.

·        Regional LSC contracts given to providers to provide specialist support services offering telephone advice, mentoring and support to organisations working within the CLS to enable them to undertake cases which would otherwise be beyond their ability; and

·        The Partnership Initiative Budget (PIB), which has enabled CLSPs to access funds to develop local initiatives to address problems associated with gaps in provision.

 

  1. On the wider issue of strategic planning at regional level, the LSC allocates contracts on the basis of contracting strategies, which prioritise areas with high indicia of social exclusion. However, these priorities are assessed borough by borough and that makes it difficult for more affluent boroughs, which nonetheless contain significant pockets of deprivation and legal need, to access sufficient provision in their deprived areas.

 

Verdict on the Access to Justice Act regime

 

  1. The mechanisms described above were intended to control cost and ensure value for money from a limited budget for civil legal aid.  However, as discussed above, within the overall legal aid budget, spending on criminal and asylum cases, where legal aid is mandatory, has squeezed the remainder of the civil legal aid budget. The increases in expenditure in criminal and asylum cases, at the expense of other important areas of civil law such as housing and family, have been explained by the Government in terms of their having to meet obligations under the Human Rights Act.   This is not an adequate explanation, because the HRA applies equally across a wide range of civil cases. Furthermore, considerable legal expenditure on legal aid in asylum cases has been attributable to the failure of Home Office procedures, increased refugee flows from conflict zones and the effect of dispersal policy.

 

  1. The result, however, of capping the civil budget is that there is manifestly an insufficient level of service provision in important areas of social welfare law such as housing and employment. Legal aid clients often have to travel significant distances and wait a number of weeks to access the appropriate specialist services; for the client who needs an emergency injunction against his or her violent partner, a defence in housing possession proceedings, or a challenge to a bailiff’s warrant, this is far from helpful.

 

  1. The combined effect of heavy-handed bureaucratic control from the centre and insufficient resources for capacity building at local level is that thousands of people do not get the help that they need and the Community Legal Service remains at best a “fig leaf’’ or virtual service. In many parts of the country, especially rural communities, solicitors are no longer undertaking legally aided work on housing, domestic violence and community care issues, employment or asylum and immigration. Clients eligible for legal aid rarely have the resources to travel to obtain legal advice. There is insufficient capacity in the advice sector to pick up these cases at specialist and court practice level. For those most in need the services simply aren’t there; this is not simply a problem in isolated or ’ghost town’ communities - places like Maidenhead, Leatherhead, Romsey, Rugby and Newcastle-under-Lyme also have no solicitors doing publicly funded work at all.

The Liberal Democrat Approach